Meaning & Nature of Procedural Law
Procedural Law (or Adjective Law) deals with the enforcement of law that is guided and regulated by the practice, procedure and machinery. This law is very important in administration of justice. Procedural law functions as the means by which society implements its substantive goals. Procedural law is derived from constitutional law, Statutes enacted by legislature, law enforcement agencies promulgating written regulations for their employees, which may not have the force of law but their violation may result in internal sanctions; and the rules and procedural guidelines laid down by the Supreme Court. According to Holland, Adjective law, though concerns primarily with the rights and acts of private litigants, touches closely on topics, such as the organization of Courts and the duties of judges and sheriffs, which belong to public law. It comprises of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense); (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution. Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.
The Procedural Law can be said, is a law that:
i. Lays down the rules with the help of which law is enforced.
ii. Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’.
iii. In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights.
iv. Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued.
v. Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing.
vi. It is the law of action that includes all legal proceedings, civil or criminal.
Law of Civil Procedure
Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil Judicature.
Law of Criminal Procedure
Law relating to criminal procedure provides or regulates the steps by which one who violates a criminal statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc., with regards to the various offences.
Here are some examples illustrating distinction between Substantive Law and Procedural Law.
i. A right of appeal is a substantive right and is creature of the statute. Rules of Limitation pertain to the domain of Adjective Law.
ii. Right to recover certain property is a question of Substantive Law (for the determination and the protection of such rights are among the ends of the administration of justice); but in what courts and within what time the person may institute proceedings are questions of Procedural Law (for they relate merely to the modes in which the courts fulfil their functions).
iii. So far as the administration of justice is concerned with the application of remedies to violated rights, the Substantive Law defines the ‘remedy’ and the right, while the Law of Procedure defines the modes and conditions of the application of the one to the other.
iv. The law that to possess ‘cocaine’ is crime in Substantive Law. Criminal Procedure sets the rules for discovering and adjudicating violations of that criminal statute — for example, police may not subject suspects to unreasonable searches and seizures, or coerce confessions. If the police violate these or other procedural rules, various procedural consequences may arise, such as exclusion of evidence at trial or dismissal of the charge.
v. Whether an offence is punishable by fine or by imprisonment is a question of Substantive Law. But whether an offence is punishable summarily or only on indictment is a question of procedure and is, therefore, a question of Procedural Law.
Substantive and Procedural Law – Prospective or Retrospective
In general, all Procedural Laws are retrospective unless a legislature specifies so.
In Nani Gopal Mitra v. State of Bihar’ (AIR 1970 SC 1636), the Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure.
In Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602 the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation and the right of a litigant to claim that he/she be tried by a particular Court, in the following words:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to form and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in Substantive Law but no such right exists in Procedural Law.
(iv) A Procedural Statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”
In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299 the Court relied upon the observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The Nature of Judicial Process – that “in the vast majority of cases, a judgment would be retrospective. It is only where the hardships are too great that retrospective operation is withheld.”