What Criminal Law Is: Substantive and Procedural
Chapter Seven
Syllabus topic 1, "Crime, Criminal Law and Criminal Justice."
Pages 21 to 23 of 711
In one line
Substantive criminal law says what is an offence and what it is punished with; procedural criminal law says how a person is brought to trial for it and how the trial is run.
In the wording a student can write in an exam: the criminal law divides into the substantive law, which defines offences, states their ingredients and fixes their punishments; the procedural or adjective law, which regulates investigation, arrest, bail, charge, trial, judgment, sentence and appeal; and the law of evidence, which governs what may be proved and how, and which is procedural in character though it is enacted separately.
Why the division matters and is not merely tidy
Four practical consequences follow, and each of them decides real cases.
Retrospectivity. A substantive provision cannot be applied to conduct done before it existed, because article 20(1) of the Constitution forbids convicting a person except for the violation of a law in force at the time of the act. A procedural change generally can be applied to a pending case, because nobody has a vested right in a form of procedure. That single distinction decides a great many arguments about newly enacted law.
Which statute to read. A question about whether conduct is an offence is answered from the substantive statute. A question about whether the police could arrest without a warrant is answered from the procedural one. A student who looks in the wrong book finds nothing and concludes there is no answer.
Where a defence lives. The General Exceptions are substantive: they say that certain conduct is not an offence at all. The burden of proving them is procedural and evidential. Both halves are needed and they are in different statutes.
What a court may do about a defect. A defect in the definition of the offence is fatal. A defect in procedure is often curable unless it has caused a failure of justice.
The three Sanhitas, as the illustration
India replaced its three principal criminal statutes with effect from 1 July 2024.
The substantive law is the Bharatiya Nyaya Sanhita, 2023, Act 45 of 2023, which replaced the Indian Penal Code, 1860. It defines offences and their punishments. Its own definition clause, section 2, is a definition of terms used across the Sanhita, and section 2(24) defines "offence" as a thing made punishable by the Sanhita.
The procedural law is the Bharatiya Nagarik Suraksha Sanhita, 2023, Act 46 of 2023, which replaced the Code of Criminal Procedure, 1973. Its section 35, for example, states when a police officer may arrest without a warrant and on what material, which is a purely procedural question that the substantive statute does not touch.
The law of evidence is the Bharatiya Sakshya Adhiniyam, 2023, Act 47 of 2023, which replaced the Indian Evidence Act, 1872.
What Criminal Law Is: Substantive and Procedural
The dates matter, and the next chapter takes them up, because ten of the eleven question papers this book is checked against were sat before the Sanhitas came into force.
Worked example
Hemant is arrested in Nashik on suspicion of theft. He says three things: that what he did was not theft; that the police had no power to arrest him without a warrant; and that the confession he gave to the officer cannot be used.
Which statute answers the first? The Bharatiya Nyaya Sanhita. Whether the ingredients of theft are made out, and in particular whether he took the property dishonestly and without consent, is a substantive question.
Which answers the second? The Bharatiya Nagarik Suraksha Sanhita, section 35, which sets out when an officer may arrest without a warrant, including on credible information that a person has committed a cognizable offence punishable with imprisonment of a particular length, and requires the officer to record reasons.
Which answers the third? The Bharatiya Sakshya Adhiniyam, which governs the admissibility of confessions, and the procedural statute's provision on the recording of confessions and statements by a Magistrate.
And if the offence was committed in 2023? Then the substantive law applied is the Indian Penal Code as it stood, because article 20(1) forbids applying a later substantive law; but the trial may well proceed under the new procedure, subject to the saving provisions the new statute itself carries.
The distinctions, in a table
| Substantive | Procedural | |
|---|---|---|
| Question answered | Is this an offence, and what is the punishment | How is the offender tried |
| Statute | Bharatiya Nyaya Sanhita 2023 | Bharatiya Nagarik Suraksha Sanhita 2023 |
| Retrospective operation | Barred by article 20(1) | Generally permitted |
| Effect of a defect | Usually fatal | Often curable unless justice has failed |
| Creates | Rights and liabilities | Machinery |
What it does NOT mean
It does not mean the two never mix. Limitation for taking cognizance, and the compounding of offences, sit in the procedural statute and affect substantive liability directly.
It does not mean evidence is a third kind of law. Evidence is procedural in nature; it is separately enacted for convenience.
And it does not mean a procedural breach never matters. A breach that causes prejudice, or that violates a constitutional protection such as the right to be informed of the grounds of arrest, can vitiate the whole proceeding.
Quick revision
- Substantive law defines offences and punishments; procedural law regulates how they are tried; evidence governs proof and is procedural in character.
- The three statutes of 2023: Bharatiya Nyaya Sanhita (Act 45), Bharatiya Nagarik Suraksha Sanhita (Act 46), Bharatiya Sakshya Adhiniyam (Act 47), all in force from 1 July 2024.
- Article 20(1) bars retrospective substantive criminal law; procedure is generally applied as it stands.
- Section 2(24) of the Nyaya Sanhita defines "offence"; section 35 of the Nagarik Suraksha Sanhita is the arrest power. One is substance, the other machinery.
What Criminal Law Is: Substantive and Procedural
Test yourself
1. Name the three Sanhitas of 2023 and say what each replaced. The Bharatiya Nyaya Sanhita replaced the Indian Penal Code 1860; the Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure 1973; the Bharatiya Sakshya Adhiniyam replaced the Indian Evidence Act 1872. All came into force on 1 July 2024.
2. Why can a procedural change be applied to a pending case when a substantive one cannot? Because article 20(1) protects against conviction under a law not in force when the act was done, and that protection attaches to the definition of the offence and its penalty. No person has a vested right in a particular form of procedure.
3. Under which statute would you look to find whether the police could arrest without a warrant? The Bharatiya Nagarik Suraksha Sanhita, section 35.
4. Are the General Exceptions substantive or procedural? Substantive. They provide that the conduct is not an offence at all. The burden of proving them is a separate, evidential question.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.