THERE IS NO CLEAR DISTINCTION BETWEEN SUBSTANTIVE AND

PROCEDURAL LAW
Substantive law refers to how facts of each case are handled and how to penalize or ascertain
damages in each case. Whereas, Procedural law refers to the different processes through which a
case proceeds. Substantive laws define the legal relationship between different individuals, or
between individuals and the State. Procedural laws define the rules with which substantive laws
may be enforced.

Salmond defines the law of procedure as that branch of the law which governs the process of
litigation. It embodies the rule governing the institution and prosecution of civil and criminal
proceedings. Salmond says that the law of procedure is the law of actions, using the word actions
in a wide sense to include all legal proceedings, civil or criminal.

Substantive law is concerned with the end which the administration of justice seeks and deals
with the rights and remedies.

Procedural law is also called “law of action”. It is that branch which governs the process of
litigation. The term ‘action’ in its widest sense includes legal proceedings both civil and
criminal. The word procedure was defined in the case of Poyser v Minors, as “the mode of
proceeding by which a legal right is enforced, as distinguished from the law which gives or
defines a right, and which by means of the proceeding of the Court is to administer the
machinery as distinguished from the product”.

The rules of procedure occupy an important place in the administration of justice by law Courts.
These rules, like those of substantive law, are primarily applicable to the persons concerned with
the justice system administration, whether it be civil, and criminal justice are also the parties
concerned.

Substantive law deals with the ends which the administration of justice seeks. Substantive law
relates to matters outside the Courts but procedural laws deal completely with matters inside
courts. Procedural law deals with the means and procedure by which those ends can be achieved.
In other words, it regulates the conduct and relations of courts and litigants in respect of judicial
proceedings. The substantive law, on the other hand, determines their conduct and relation in
respect of the litigation of the matter. In the case of Thirumalai Chemicals Ltd. vs. Union of
India and others, the Supreme Court has held that all those laws which affect the substantive
and vested rights of the parties have to be taken as substantive law, whereas any provision of law
dealing with the form of the trial, mechanism of the trial or procedure thereof, has to be treated
as procedural in nature.

The distinction between substantive and procedural law according to Salmond include that
Substantive law determines the conduct and relations of the parties inter se in respect of the
matter litigated whereas the procedural law regulates the conduct and relations of courts and
litigants in respect of litigation.

Substantive law deals with the ends which the administration of justice contemplates while
procedural law deals with the means and instruments by which the end of the administration of
justice is to be attained. For example, the question that a person has a right to recover certain
property pertains to substantive law because the protection of such a right is among one of the
ends of justice but in what court and within what time the proceedings should be instituted is a
question of procedural law.

The question as to what facts constitute a wrong is determined by the substantive law while what
facts constitute proof of wrong is a question of procedure. Substantive law defines the remedy
and the right, whereas the law of procedure defines the modes and conditions of the application
of one to the other. Substantive law related to matters outside the courts whereas the procedural
law regulates affairs inside the courts.

Despite the above distinction, it is not wholly correct to say that substantive law defines the
rights while the procedural law determines the remedies. There are many rights that pertain to the
sphere of the procedure. For example, a right of appeal, a right to interrogate the opposite party,
a right to give evidence on one’s own behalf, etc. Conversely, there may be certain rules
determining remedy which may be a part of substantive law. For instance, the rules determining
classes of agreements which shall be specifically enforced are clearly substantive in nature.
Again, the substantive part of the criminal law deals, not with crimes alone, but punishments as
well. In civil law, rules, as to measure of damages and power to recover them, are in the nature
of remedial rights and pertain to the sphere of substantive law.
It must be stated that most part of the Code of Criminal Procedure and the law of Evidence
pertains to procedural law whereas the Indian Penal Code, the law of contract, transfer
of property, negotiable instruments, etc. are the examples of substantive law. Again, company
law is generally regarded more a substantive law though it has so much of procedure in it since it
contains the procedure for formation and management of companies, mode of increasing
reducing or reorganization of share capital, the procedure for company-meetings, Mergers,
Acquisition, and amalgamation, winding up, etc.

Salmond specifically refers to three instances where the rules of procedure which, in their
operation, are wholly or substantially equivalent to rules of substantive law. It is for this reason
he says that the difference between substantive law and procedure law is one of form rather than
of substance. There is a rule of evidence that in order to prove a contract, it must be in writing.
This corresponds to the rule of substantive law that a contract is void unless it is reduced in
writing. Thus in the former, the writing is the exclusive evidence of title while in the latter,
writing is a part of evidence itself. Therefore, is it evident that the distinction is one of form
rather than of substance.

All conclusive presumptions pertain in the form of the procedure, but in effect, they constitute
the substantive part of the law. For example, the evidence that a child below the age of seven
is doli incapax, i.e., incapable of criminal intention, is a part of the law of procedure but it differs
only in form from the substantive rule that no child under that age is punishable for an offence.

It has been said that limitation of actions is procedural equivalent of the right of prescription
which is a subject-matter of substantive law. The law of limitation which pertains to procedural
law destroys the bond between right and remedy whereas the right of prescription, which is its
substantive equivalent, destroys the right itself. Thus in their practical application the effect of
both is same although they differ in their forms.

The rules of pleading and the law of evidence constitute the most important branches of
procedural law. The rules of pleading must be followed by parties to make out their case before
the court of law so as to enable the court to decide the case. The law of evidence contains the
rules by which the proof of disputed facts is governed. Thus these two have a major role to play
in enabling the courts to decide cases.
It is significant to note that where procedural law differs from the substantive law, the latter shall
prevail over the former because the procedural law deals with the form and not with the
substance or the spirit of the law. The law courts would always look to the spirit of the law and
may even go beyond the procedural law for this purpose if so required. Further, there can be no
estoppel against the statute and the rule of estoppel would not be allowed to prevail over the
provisions of the substantive law.

The rules and different examples signify that there is not much of a clear distinction between
both types of laws. Both are interlinked with each other and one doesn’t hold much value
without the other. There are instances where Salmond has proved that the distinction is between
substantive and procedural law is merely of substances. Both of them depend on one another in
some way.