The Dual Nature of India's Constitution: A Comprehensive Analysis of its Substantive and Procedural Dimensions

 The Constitution of India stands as one of the world's most comprehensive constitutional documents, embodying a unique characteristic that sets it apart from many other legal instruments. Unlike traditional legal frameworks that fall distinctly into either substantive or procedural categories, India's Constitution transcends this binary classification, functioning simultaneously as both substantive and procedural law. This dual nature makes it a remarkable legal document that not only defines rights and duties but also establishes the mechanisms for their enforcement and protection.

Conceptual Framework: Understanding the Legal Distinction

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Supreme Court: Curable Procedural defects shall not defeat the substantive rights of the party

The contention of the appellant with vehemence is that the

application CLMA seeking permission to file joint appeal against

common judgment and two decrees has not been decided by the

impugned order, though at the time of admitting the appeal and

issuing notice, objections were called. In the counter-affidavit

filed by the respondent even before this Court, the said fact has

not been contested or refuted. In the order, it has also not been

mentioned that dismissal of the appeal would lead to decide all

pending applications including CLMA. As per record, it is clear

that the High Court admitted the appeal on 18.07.2008 and

CLMA was awaiting its fate for almost about a decade. By the

impugned order passed on 04.07.2018, first appeal was

dismissed accepting the preliminary objection regarding

maintainability applying the principle of res-judicata. There is not

even any without observation that permission as sought to file

one appeal cannot be granted. The record indicates that the

CLMA filed by the appellant seeking permission to file one appeal

was not decided. It is to observe, once at the time of admission of

first appeal, despite having objection of maintainability it was

admitted asking reply and rejoinder on CLMA, the High Court

ought to have decided the said application.

Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after

consolidation. In case, the High Court would have rejected the

said CLMA, the appellant could have availed the opportunity to

file separate appeal against the judgment and decree passed in

Civil Suit No.411 of 1989. Without deciding the CLMA and

accepting the preliminary objections, dismissing the appeal as

barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on

dismissal of the CLMA, the appellant might have had the

opportunity to rectify the defect by way of filing separate appeal

under Section 96 of CPC challenging the same judgment with

separate decree passed in Civil Suit No.411 of 1989. Converse to

it, if this Court proceeds to consider the merit of the contentions

raised in the said CLMA and record the findings in negative, it

would effectively render the appellant remediless, therefore, we

refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be

allowed to defeat the substantive right accrued to the litigant

without affording reasonable opportunity. Therefore, in our

considered view, non-adjudication of the CLMA application, and

upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the

appellant. {Para 10}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4639 OF 2022

M/S RAMNATH EXPORTS PVT. LTD Vs VINITA MEHTA & ANR

Coram: J.K. Maheshwari, J.

Dated: July 05, 2022.

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Whether Negotiable instruments (amendment) Act 2018 has retrospective effect?

See Negotiable Instrument amendment Act 2018: Click here

Therefore, it has to be held that Section 143-A of the Act cast a substantive
obligation upon the accused and thereby effect the substantive right of the
accused. Since the Amendment Act has not made the provision applicable
retrospectively, specifically, to pending cases, hence, it cannot be applied
retrospectively, to pending cases; which arose from the default of the
accused which has taken place before coming into force of this provision.
It permits the Appellate Court to
order the convict to deposit only 20% of the fine or compensation, leaving
the remaining amount to be paid beyond a period of 90 days; or not to be
paid even till conclusion of the appeal.
In view of the above discussion, it is quite clear that the
procedure of recovery of fine or compensation from a convict-appellant of
pending appeal already existed in CR.P.C; before advent of the provision as
contained in Section 148 of the Act. Hence, no new aspect of coercive
recovery of fine or compensation from the appellant is being created
through this amended provision. On the contrary, this provision provides

more breathing space to the convict/appellant; as compared to the other
procedures of recovery, as contemplated under Sections 421 and 424 of
Cr.P.C, which is for more onerous in terms of time limit and the
consequences. Since the provisions for recovery of fine or compensation
from the appellant/convict already existed in the existing procedure relating
to the recovery, therefore, the provision introduced vide Section 148 of the
Act; which relates only to recovery of amount partly, as interim measure,
has to be treated purely procedural only, which is otherwise also beneficial
for the appellant as compared to the pre-existing provisions. Hence it has to
be held that provision of Section 148 of the Act shall govern all the appeals

pending on date of enforcement of this provision or filed thereafter.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.9872-2018(O&M)
Date of decision:04.04.2019

M/s Ginni Garments Vs M/s Sethi Garments 

Coram: Hon’ble Mr. Justice Rajbir Sehrawat

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Whether substantive rights are right created by statute or any other law or it may relate to procedural law?

Moreover the expression "substantive rights" used in the authorities I have considered must be understood in the lexical sense. It ought not necessarily to be construed as a right created by statute or any other law. In other words, to be revisable it is not necessary that the order must relate to a provision of substantive law. Even if it relates to a procedural law it would be revisable if it affected substantively the rights of a party.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 4 of 2004

Decided On: 05.05.2004

Pacific Engineering Co. Pvt. Ltd. Vs. East India Hotels Ltd.

Hon'ble Judges/Coram:

S.J. Vazifdar, J.

Citation: 2004(40 ALLMR 330

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Whether parties to an arbitration agreement are free to decide both procedural and substantive law?

However, the authors in Comparative International Commercial
Arbitration32 go a step further in that, apart from procedure, they say that party
autonomy permits parties to have their choice of substantive law as well. It is
said:
“All modern arbitration laws recognise party autonomy, that is,
parties are free to determine the substantive law or rules applicable
to the merits of the dispute to be resolved by arbitration. Party
autonomy provides contracting parties with a mechanism of avoiding the
application of an unfavourable or inappropriate law to an international
dispute. This choice is and should be binding on the arbitration tribunal.
This is also confirmed in most arbitration rules.” [Emphasis supplied by
us].
31 Chapter 6. Conduct of the Proceedings in Nigel Blackaby, Constantine Partasides,
et al., Redfern and Hunter on International Arbitration (Sixth Edition), (© Kluwer Law
International; Oxford University Press 2015) pp. 353 – 414, paragraph 6.07
32 Chapter 17 Determination of Applicable Law in Julian D. M. Lew, Loukas A.
Mistelis, et al., Comparative International Commercial Arbitration, (© Kluwer Law
International; Kluwer Law International 2003) pp. 411 – 437, paragraph 17-8
C.A. Nos.2562 of 2006 etc.
Page 25 of 2940. Be that as it may, the legal position as we understand it is that the parties to
an arbitration agreement have the autonomy to decide not only on the procedural
law to be followed but also the substantive law. The choice of jurisdiction is left
to the contracting parties.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2562 OF 2006
M/S. CENTROTRADE MINERALS & METAL INC. 
VS.
HINDUSTAN COPPER LTD.
Dated:December 15, 2016
Citation:(2017) 2 SCC228

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When court should not condone delay in bringing legal heirs of deceased party on record?

Code of Civil Procedure, 1908 – Order 22, rules 3 and
9; s. 151 read with s.5 of Limitation Act, 1963 – Death of
appellant during pendency of appeal before Supreme Court
– Application filed after long delay of 778 days for bringing
the legal representatives of deceased appellant on record
accompanied by application for condonation of delay – Held:
Such applications cannot be allowed as a matter of right and
even in a routine manner – They should be rejected unless
sufficient cause is shown for condonation of delay – On facts,
except for a vague averment that the legal representatives
were not aware of the pendency of the appeal, no other
justifiable reason was stated by the applicants – The
applications also did not contain correct and true facts, thus,
want of bona fides is imputable to the applicants – No reason
nor sufficient cause was shown as to why immediate steps
were not taken by the applicants, even after they admittedly
came to know of the pendency of the appeal – The conduct
of the applicants was abnormal – They acted irresponsibly
and even with negligence, and miserably failed in showing any
‘sufficient cause’ for condonation of the long delay of 778 days
– Applications accordingly dismissed – Resultantly, the
appeal, having already abated, also dismissed.
Limitation – The law of limitation is a substantive law and
has definite consequences on the right and obligation of a
party – Once a valuable right is accrued in favour of one party
as a result of the failure of the other party to explain the delay
by showing sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere asking of
the applicant, particularly, when the delay is directly a result
of negligence, default or inaction of that party.

Supreme Court of India

Balwant Singh (Dead) vs Jagdish Singh & Ors on 8 July, 2010

Bench: B.S. Chauhan, Swatanter Kumar

Citation:AIR 2010 SC 3043

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What is distinction between substantive and procedural law?

Mr. Dada, argued that the amendment to Section 36
affects the substantive right of an award-debtor and hence it must
take prospective effect. He refers to the decision of the Apex Court
in Thirumala Chemicals Ltd. V/s. Union of India and Ors. reported in
(2011) 6 SCC page 739 to support his submission. In that decision,
the question considered was, whether the Appellate Tribunal
constituted under the Foreign Exchange Management Act (“FEMA”
for short) was right in dismissing an appeal preferred under Section
19(1) of FEMA by applying the first proviso to Section 52(2) and
Foreign Exchange Regulation Act, 1973 (“FERA” for short) holding
that, it had no power to condone the delay beyond 90 days. Although

the cause of action had arisen when FERA was in force, show cause
notices and impugned notices were issued, when FEMA was imposed
and appeals were also preferred under Section 19(1) of FEMA. The
Apex Court, in that decision considered, the distinction between
substantive and procedural law at paras-23 to 27. The same reads as
under :-
“23. Substantive law refers to a body of rules that
creates, defines and regulates rights and liabilities.
Right conferred on a party to prefer an appeal against
an order is a substantive right conferred by a statute
which remains unaffected by subsequent changes in
law, unless modified expressly or by necessary
implication. Procedural laws establishes a mechanism
for determining those rights and liabilities and a
machinery for enforcing them. Right of appeal being a
substantive right always act prospectively. It is trite
law that every statute is prospective unless it is
expressly or by necessary implication made to have
retrospective operation.
24. Right of appeal may be a substantive right but
the procedure for filing the appeal including the
period of limitation cannot be called a substantive
right, and an aggrieved person cannot claim any
vested right claiming that he should be governed by
the old provision pertaining to period of limitation.
Procedural law is retrospective meaning thereby that
it will apply even to acts or transactions under the
repealed Act.
25. Law on the subject has also been elaborately
dealt with by this Court in various decisions and
reference may be made to a few of those decisions.
This Court in Garikapati Veeraya v. N. Subbiah
Choudhry, reported in AIR 1957 SC 540, New India
Insurance Co. Ltd v. Shanti Misra,reported in (1975)

2 SCC page 840, Hitendra Vishnu Thakur v. State of
Maharashtra, reported in (1994) 4 SCC page 602,
Maharaja Chintamani Saran Nath Shahdeo v. State
of Bihar, reported in (1999) 8 SCC page 16 and
Shyam Sunder v. Ram Kumar, reported in (2001) 8
SCC page 24, has elaborately discussed the scope and
ambit of an amending legislation and its
retrospectivity and held that every litigant has a
vested right in substantive law but no such right exists
in procedural law. This Court has held that the law
relating to forum and limitation is procedural in
nature whereas law relating to right of appeal even
though remedial is substantive in nature.
26. Therefore, unless the language used plainly
manifests in express terms or by necessary implication
a contrary intention a statute divesting vested rights is
to be construed as prospective, a statute merely
procedural is to be construed as retrospective and a
statute which while procedural in its character, affects
vested rights adversely is to be construed as
prospective.
27. Rights of appeal conferred under Section 19(1) of
FEMA is therefore a substantive right. The procedure
for filing an appeal under sub-section (2) of Section 19
as also the proviso to sub-section (2) of Section 19
conferring power on the Tribunal to condone delay in
filing the appeal if sufficient cause is shown, are
procedural rights.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

CHAMBER SUMMONS NO.1530 OF 2015
IN
EXECUTION APPLICATION (L) NO.2481 OF 2015
IN
ARBITRAL AWARD DATED 22ND JUNE, 2015
In the matter between :
M/s Rendezvous Sports World 
Vs.
The Board of Control for Cricket 
in India
Coram : Smt. R.P. SondurBaldota, J.
Date : 14th June, 2016.

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Whether award passed by arbitrator is valid even though there is not arbitration agreement?

Insofar as judgment of Supreme Court in case of Associate Builders (supra) relied upon by the learned counsel for the appellant is concerned, it is held by the Supreme Court that when a court is applying the 'public policy' test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. It is held that the arbitrator is ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. It is held by the Supreme Court that an award can be said to be against justice only when it shocks the conscience of the court. If the award is in contravention with the Arbitration Actitself, it would be regarded as patent illegality. It is held that the contravention of the substantive law of India would result in the death knell of an arbitral award. In my view, the learned arbitrator has exceeded his jurisdiction and has rendered an award though there was no arbitration agreement entered into between the parties. The impugned award thus was in contravention of the substantive law of India and showed patent illegality. The impugned award in my view thus has been rightly set aside by the learned Principal District Judge.

Bombay High Court

M/S. Gill & Company Pvt. Ltd. ... vs M/S. Patodia Ginning Factory on 20 April, 2016

Bench: R.D. Dhanuka

      CIVIL APPELLATE JURISDICTION
     ARBITRATION APPEAL NO. 40 OF 2015



Citation:2016(3) MHLJ890

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Whether procedural law will prevail over substantive law?

 The key word for determination of question involved is underlined, i.e., "name of any party improperly joined". The word improperly, in my view, is wide enough to include the name of a defendant who was no more when suit was filed. Learned counsel for the parties, during the course of arguments, fairly admitted that defendant No.2 died even before filing of the suit. If plaintiff was not aware about his death and impleaded him as defendant No.2, it can be said that he was improperly impleaded. Apart from this, no prejudice is caused to petitioner by the impugned order. Thus, I am unable to hold that the Court below has committed any error in permitting the deletion of the name of said defendant under Order 1 Rule 10(2) CPC. It cannot be forgotten that the procedural law is made for smooth functioning. It is not made to strangulate the litigants on hyper technical grounds. This Court has considered this aspect in a recent judgment reported in 2014(3) M.P.L.J. 612 (Dataram Singh & others Vs. Brindawan Singh and others) and opined as under:-

"In the opinion of this Court, the court below has taken a view to advance the cause of justice and did not permit itself to be strangulated by hyper- technicalities. This is settled in law that all the rules of procedure are the handmaid of justice. The Apex Court in AIR 1955 SC 425 (Sangram Singh v. Election Tribunal, Kotah) opined that A code of procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against. The Apex Court in (1975 (1) SCC 774 (Sushil Kumar Sen v. State of Bihar) opined that the mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. In (1976) 1 SCC 719 (State of Punjab v. Shamlal Murari), the Apex Court held that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In (1984) 3 SCC 46 (Ghanshyam Dass v. Dominion of India) the Apex Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. In (2005) 4 SCC 480 (Kailash vs. Nanhku and others) the Apex Court held that the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."

Madhya Pradesh High Court

Smt. Rama Agrawal vs Smt. Mithlesh Agrawal on 29 June, 2015

BENCH AT GWALIOR

JUSTICE SUJOY PAUL.

Writ Petition No. 3596/15

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Bombay HC: Amendment to Section 106 of the Transfer of Property Act shall have retrospective effect

The background in which an amendment to Section 106 came to be enacted find elaboration in the One Hundred and Eighty-First Report of the Law Commission. The requirement of furnishing a notice expiring with the month of tenancy gave rise to a considerable degree of uncertainty in the law. The object of Section 106 was that before a lessor sues for possession, there must be a cessation of the relationship of lessor and lessee. The period of notice was intended to give to the lessee a reasonable period before being called upon to vacate the premises. However, the interpretation of Section 106 was not free from complexity and the line of precedent gave rise to rigidities in the application of law that were perhaps unforeseen by the framers of the legislation in 1882. The date on which the notice was served was required to be excluded as a result of the judicial interpretation of Section 106 though not the day on which the tenancy was sought to be terminated. There were disputes in regard to the exact date of the commencement of tenancy which concomitantly gave rise to a dispute in regard to the expiration of the tenancy. Though in the generality of cases suits came to be instituted much after the stipulated period had expired, yet issues were required to be framed and were framed by trial courts across the country on the validity of notices of termination. Apart from breeding delay, there was a multiplicity of litigation since it was always open to the landlord to institute a fresh suit for eviction upon a due and valid termination of tenancy. This was the state of affairs which Parliament sought to obviate in enacting an amendment to Section 106 of the Transfer of Property Act, 1882. The object of the amendment was to render the law certain and to provide consistency in its application. Certainty and consistency are the ideals - however elusive they may be in practice - for a system governed by the rule of law. The legislature has thus stepped in to correct an obvious deficiency in the law. No litigant can claim to have a vested right in benefiting from the complexities of law or in the confusion that may be generated by ingenious arguments designed to defeat the genuine claim of a plaintiff who sues to recover possession upon the termination of a lease which does not find protection of rent control legislation. Thus the element of public interest must militate against the acceptance of the argument that the amendment is arbitrary or unconstitutional as being in violation of Article 14. Plainly it is not.

18. Parliament was completely within the realm of its plenary powers in determining that the amended provision should have limited retrospectivity. The retrospectivity that has been conferred is to the extent that the amended provision shall apply to all notices in pursuance of which a suit or proceeding is pending at the commencement of the Amending Act. Similarly, the amending provision applies to notices which have been issued before the commencement of the Act but where no suit or proceeding has been filed before such commencement. The legislature has, therefore, considered it appropriate in its wisdom to extend the application of the amended provision to situations where adjudication has not been concluded on the validity of a notice of termination under Section 106. There is nothing arbitrary or ultra vires therein.

Bombay High Court

Allahabad Bank vs Prakash Shankar Wagh on 3 April, 2006

Equivalent citations: AIR 2006 Bom 321, 2006 (3) BomCR 4, 2006 (4) MhLj 154

Bench: F Rebello, D Chandrachud

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When change in law will operate retrospectively?

Reference may also be made upon the decision of this Court in Anant Gopal Sheorey v. State of Bombay AIR 1958 SC 915 where the legal position was stated in the following words: "4. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.
SUPREME COURT OF INDIA

Ramesh Kumar Soni Vs. State of Madhya Pradesh on 26 February, 2013

[Criminal Appeal No. 353 of 2013 arising out of S.L.P. (CRL.) No.5663 of 2011]

T.S. THAKUR, J.
Citation:(2013) 14 SCC 696

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Whether court can condone delay in cheque dishonour cases which was instituted prior to coming into force of amendment Act?

All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not.

9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment 

providing for extending the period of limitation on sufficient cause being shown would be enacted."

26. Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. The direction to issue summons on the appellant, therefore, being illegal and without jurisdiction was a nullity.

Supreme Court of India

Subodh S. Salaskar vs Jayprakash M. Shah & Anr on 1 August, 2008

Author: S.B. Sinha

Bench: [ Joseph], [ Sinha]

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1190 OF 2008 

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