BALLB- MEANING AND DEFINITION OF PROCEDURAL AND SUBSTANTIVE LAW WITH THEIR DISTINCTION.

 Law is the body of the principles and rules that are applied by the State to maintain peace and justice in society. All the law recognized by the state falls under two categories: Substantive law and Procedural law under which criminal law, civil law, evidence law, the law of contract, company law etc also fall.

Substantive law defines and determines the rights and duties of the person. If such rights are encroached upon or violated, procedural law will show the proper way to restore such violated rights. If somebody is reluctant to complete the obligation as said by law, procedural law shows the process to complete such obligation.  So substantive law determines the rights and liabilities of the parties where as their enforcement is guided and regulated by the practice, procedure and machinery as prescribed by the procedural law.

Procedural law is the body of legal rules that govern the process for determining the rights in case of violation of such rights. It prescribes the procedures and methods for enforcing rights and duties and for obtaining legal remedy through a lawsuit.  It prescribes rules relating to jurisdiction, locus standi, limitation, res-judicata, summons, pleading and practice, prosecution of crime, collection of evidence, witness examination, execution of judgments etc. So procedural law governs the process by which substantive law is applied.

It finds out the way of implementation of substantive laws through civil and criminal proceedings. It shows the way of getting back rights in case of violation and infringement of such rights. Therefore, it determines the procedures to be followed in judicial proceedings. The procedural law ensures fair practice and consistency in due process of law. In other words, procedural law will give a step-by-step action plan on how the case is supposed to proceed in order to achieve the desired goals. It can be divided into civil procedure and criminal procedure. It describes the methods and ways to achieve the rights prescribed in the law. It deals with the process regarding how to achieve the legal remedy. It explains the instruction of the remedy to address rights. For example, Evidence Act, 2031 B.S., Civil Procedure 2074, Criminal Procedure 2074, Special Procedural  Act 2059, Summary Procedural Act, 2028 B.S.)

 

Relation and distinction between Substantive law and procedural law:

There is a close relationship with each other. It is difficult to distinguish, however, W.W Cook who was the first person to distinguish substantive law and procedural law. According to him, “Substantive law gives knowledge about the people’s rights whereas, procedural law gives knowledge about the legal proceedings that an individual can exercise to achieve such rights if he loses them.”

The law relating to the recognition of rights and duties is called substantive law. It does not only provide rights, duties, immunities and privilege but also recognizes them and imposes them on people of the society and make them accountable to respect those rights, and duties as well.

   Thus the substantive law determines the rights and liabilities of the parties where as their enforcement is guided and regulated by the practice, procedure and machinery as prescribed by the procedural law. From this point of view, it is an objective as well as a subjective matter of law. The purpose of substantial law is to ascertain the subject matter of litigation. In contrast, the purpose of procedural law is to ascertain the way how to be sued in the Court and how the Court is supposed to decide things in civil and criminal proceedings.

  According to Salmond, “Substantive law is concerned with the ends, which the administration of justice seeks, whereas procedural law governs the process of litigation.” The law which establishes means to be followed in enforcing or ascertaining rights, and duties provisioned by substantial law is known as procedural law.

In Black Law Dictionary, procedural law is “That which prescribes methods of enforcing a right or obtaining redress for their invasion; machinery for carrying on a suit”. For instance, the question as to who holds the right to property is the question of substantive law and the question of how to litigate a person to acquire his lost right is the question of procedural law.

    In conclusion, procedural law inseparably linked with substantive law, prescribes the necessary procedures to exercise and defend the provisions of substantive law. For example, substantive law defines the various degrees of murder while procedural law prescribes the trial process. Therefore, procedural laws only tell us about the procedure to get rights, whereas substantive laws have the power to offer legal solutions. Substantive and procedural laws are the two main areas of the law and they are closely interrelated with each other, as one defines the rules of society while the other set the framework of process for enforcing them. Hence, one can not exist in the absence of the other.