Substantive Criminal Law vs Procedural Criminal Law | BNSS

Substantive Criminal Law and Procedural Criminal Law: Distinction, Tests of Classification, Retrospectivity and the Borderline Provisions

The division of criminal law into substantive and procedural is not an academic convenience. It decides whether a provision applies to conduct that preceded it, whether a breach of it destroys a proceeding, whether an objection to it can be waived, which legislature may enact it and, in a case with a foreign element, which country’s law governs it. The same words in the same statute produce different results according to how the provision is characterised.

The distinction has acquired fresh practical importance in India since 1 July 2024. The Bharatiya Nyaya Sanhita, 2023 cannot be applied to an act done before that date, while the Bharatiya Nagarik Suraksha Sanhita, 2023 would have applied at once to every pending proceeding had section 531(2)(a) not saved them in express terms. Both consequences follow from the classification, and neither follows from anything else.

1. The Distinction Stated

1.1 The classical formulations

Substantive law determines rights, duties and liabilities. Procedural law, or adjective law, determines the means by which they are enforced. Salmond described the law of procedure as that branch of the law which governs the process of litigation, and substantive law as all the rest, adding that the distinction is between the ends which the administration of justice seeks and the means by which those ends are attained. Holland put it as the difference between the rights that the law protects and the machinery by which it protects them. Bentham treated procedure as the instrument by which substantive law is carried into effect and observed that the one has no existence in practice without the other.

	Substantive criminal law	Procedural criminal law
Question answered	What conduct is an offence, and what punishment does it attract?	How is a person suspected of that conduct investigated, tried, convicted and punished?
Indian statute	Bharatiya Nyaya Sanhita, 2023, and the penal provisions of special statutes	Bharatiya Nagarik Suraksha Sanhita, 2023
What it creates	Offences, defences, liability and punishment	Powers, forums, forms, stages and time limits
Whom it addresses	The citizen, before the event	The police, the prosecutor and the court, after the event
Character	Declares the law	Confers and conditions the power to enforce it

1.2 The test is function, not location

A provision is not substantive because it appears in the Bharatiya Nyaya Sanhita, nor procedural because it appears in the Sanhita. The Sanhita contains provisions that create liabilities: section 91 permits a bond to be taken, breach of which attracts a penalty; section 123 deals with the forfeiture of property. The Bharatiya Nyaya Sanhita contains provisions that operate procedurally, notably those on the effect of a conviction on a subsequent prosecution. The Bharatiya Sakshya Adhiniyam is usually classed as procedural, yet a provision that raises a presumption against an accused affects the outcome as directly as a definition of the offence.

The question to ask is what the provision does. Does it tell a person what he may not do, and what will happen to him if he does it? Then it is substantive. Does it tell the State how to go about establishing that he did it, and what steps must be taken and in what order? Then it is procedural. Where the answer is both, the provision must be characterised for the particular purpose in hand: the same section may be substantive for the purpose of Article 20(1) and procedural for the purpose of the rule on curable irregularities.

2. Why the Classification Matters

Figure 1: The five consequences that follow from the classification

2.1 Operation in time

This is the most important of the five and the source of most litigation. Substantive criminal law is prospective, and the rule is constitutional rather than merely presumptive.

Article 20(1), Constitution of India

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

📖 Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394

Facts: The accused was prosecuted for offences alleged to have been committed in 1949, under an Ordinance which had been brought into force in the State with retrospective effect from a date preceding the acts charged. The contention was that the Ordinance, though notionally in force at the relevant time by reason of its own retrospective operation, was not a law in force within the meaning of Article 20(1).

Held: The Supreme Court held that the expression “law in force” in Article 20(1) means the law factually in operation at the time the act was committed, and not a law deemed by a subsequent enactment to have been in force at that time. A legislature may pass a retrospective law, but it cannot by doing so satisfy Article 20(1), which is directed precisely at the evil of ex post facto criminal legislation. The protection extends both to conviction for an act that was not an offence and to the imposition of a penalty greater than the law then allowed.

Ratio: Article 20(1) is tested by the law actually in operation on the date of the act. A deeming provision cannot supply what the Article requires, and the prohibition covers both the creation of the offence and the enhancement of the penalty.

The protection is one-way. It shields the accused against a law that creates an offence or increases a punishment; it does not prevent the application of a law that reduces the punishment, since that is not a burden but a benefit. On the procedural side the position is reversed, and the rule is a presumption rather than a constitutional command.

📖 Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915

Facts: A trial was in progress when an amendment to the Code of Criminal Procedure altered the procedure applicable to the class of case. The accused contended that the trial should continue under the procedure in force when it began, since that was the procedure he had faced when the proceeding was instituted.

Held: The Supreme Court held that no litigant 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. An alteration in procedure is therefore retrospective in the sense that it applies to pending proceedings, unless the statute provides otherwise.

Ratio: A change in procedure applies at once to proceedings already begun, because no person has a vested right in a form of procedure. The presumption of retrospectivity for procedural law is the mirror of the presumption of prospectivity for substantive law.

The presumption is not absolute. Where a provision, though procedural in form, creates a new disability or obligation, or takes away or impairs a vested or accrued right, it is not applied retrospectively. That qualification was stated comprehensively in Hitendra Vishnu Thakur v. State of Maharashtra, and it is the point at which the neat dichotomy begins to blur.

2.2 The effect of a defect

A conviction under a provision that did not create the offence at the material time is a nullity, because the foundation of the conviction is absent. A departure from procedure is treated quite differently. Chapter XXXVII of the Sanhita distinguishes irregularities that do not vitiate proceedings under section 506 from those that do under section 507, and section 511 makes failure of justice, rather than non-compliance, the test for reversal, directing the court also to consider whether the objection could and should have been raised at an earlier stage.

2.3 Waiver

A substantive protection cannot be waived. Consent does not make punishable what the law does not punish, and an accused cannot agree to be convicted of an offence unknown to law. A procedural requirement is frequently treated as waived by conduct. An objection to the jurisdiction of a court on the ground of the place of trial, an objection to a defect in the charge, and an objection to the manner in which evidence was recorded may all be lost if not taken at the proper stage, which is precisely what section 511 contemplates when it directs attention to whether the objection could have been raised earlier.

2.4 Choice of law

In a case with a foreign element, procedure is governed by the law of the forum. An Indian court trying an offence committed abroad under section 208 of the Sanhita applies Indian procedure to the trial, whatever the procedure of the place where the act was done. The substantive question, whether the act was an offence and what punishment it attracted, is answered by reference to Indian substantive law as applied by section 208, and the sanction of the Central Government is required before the inquiry or trial.

2.5 Legislative competence

The distinction is written into the Seventh Schedule to the Constitution. Entry 1 of the Concurrent List is criminal law, including all matters included in the Indian Penal Code at the commencement of the Constitution but excluding offences against laws with respect to any of the matters specified in the Union List or the State List. Entry 2 is criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of the Constitution. Entry 12 is evidence and oaths.

Three consequences follow. Both Parliament and the State Legislatures may legislate on criminal law and on criminal procedure. A State amendment to the Sanhita is possible and several States have made such amendments to the Code of Criminal Procedure over the years. And because the field is concurrent, Article 254 governs repugnancy, so that a State law inconsistent with a Union law is void unless it has received the assent of the President.

3. The Borderline Provisions

Figure 2: The spectrum from clearly substantive to clearly procedural

Provision	Argument that it is procedural	Argument that it is substantive	How it is treated
Limitation for taking cognizance, sections 513 to 519 BNSS	It bars the remedy and not the right, which is the classic mark of a procedural rule	Its expiry extinguishes the possibility of prosecution altogether, so the consequence is not merely remedial	Treated as procedural, but a bar that had accrued under the old Code is expressly preserved by section 531(2)(d)
Presumptions and burden of proof	Contained in the law of evidence and applied at trial	A presumption against the accused materially alters the likelihood of conviction and effectively redefines what the prosecution must prove	Treated as procedural in form but applied with the caution due to substantive rules; a presumption is not applied to an act done before it was enacted where it would operate to the prejudice of the accused
Right of appeal	Exercised by procedural steps and regulated by a procedural chapter	It is a right of the party and not a mere mode of proceeding	Treated as a substantive right which vests when the proceeding is instituted and is governed by the law as it then stood
Bail and default bail	Machinery for release pending investigation or trial	The right that accrues on the expiry of the statutory period is founded on Article 21 and cannot be defeated by a later change	The machinery is procedural; the accrued right is not, and once it has accrued it is not taken away
Sentencing provisions on the manner of serving a sentence	Directed to the execution of a sentence already imposed	Remission and commutation affect the actual period of imprisonment and therefore the punishment	A change that increases the period actually to be served is not applied to an offence committed earlier
Provisions conferring jurisdiction on a particular court	The allocation of business among courts is procedural	A change may deprive a party of a forum or an appeal	Ordinarily procedural and applied at once, unless it impairs an accrued right of appeal

⚠ The working rule

Begin with the presumption that the provision is what it appears to be. A rule about how a thing is to be done is procedural; a rule about what may be done and with what consequence is substantive.

Then apply the qualification. Does the provision, as applied to the case in hand, create a new disability or obligation, or take away or impair a right that has already vested or accrued? If it does, it is not applied retrospectively even though it is procedural in form.

Characterise for the purpose in hand, not in the abstract. The same provision may be procedural for one purpose and substantive for another, and a general classification of it is usually the source of the error.

4. The Distinction Applied to the 2023 Transition

The three statutes of 2023 supply an unusually clean illustration, because all three came into force on the same day and the consequences diverge exactly along the substantive and procedural line.

Question	Answer	Reason
Which penal statute applies to an act done on 1 June 2024?	The Indian Penal Code, 1860	Substantive law is prospective; Article 20(1) requires the law in force at the time of the act
Which penal statute applies to an act done on 1 August 2024?	The Bharatiya Nyaya Sanhita, 2023	It was the law in force when the act was done
Which procedural code applies to an investigation registered on 1 June 2024 and continuing after 1 July?	The Code of Criminal Procedure, 1973	Not because procedure is prospective, but because section 531(2)(a) expressly saves pending proceedings. Without that clause the Sanhita would have applied at once
Which procedural code applies to an FIR registered on 1 August 2024 for an act done in May 2024?	The Bharatiya Nagarik Suraksha Sanhita, 2023	Nothing was pending on the appointed day, so the Sanhita applies of its own force even though the offence is one under the Indian Penal Code
Where the BNS prescribes a lighter punishment than the IPC for the same conduct done before 1 July 2024, which applies?	The lighter punishment is available	Article 20(1) is a shield and not a restriction on leniency; a reduction in punishment may be applied retrospectively in favour of the accused
Can a trial pending on 30 June 2024 be continued in absentia under section 356 BNSS?	No	Section 531(2)(a) directs that the saved proceeding be conducted as if the Sanhita had not come into force, and section 356 has no counterpart in the old Code

The fourth row is the one most often got wrong. A prosecution for an offence under the Indian Penal Code, 1860 conducted under the Bharatiya Nagarik Suraksha Sanhita, 2023 is not an anomaly; it is the ordinary consequence of the two questions being answered by two different rules. The penal statute is chosen by the date of the act; the procedural code is chosen by what was pending on the appointed day.

5. The Third Category: the Law of Evidence

Evidence is conventionally grouped with procedure, and the Bharatiya Sakshya Adhiniyam, 2023 was enacted alongside the Sanhita on that footing. The classification is broadly right, since the rules of evidence regulate how facts are established rather than what conduct is punishable, and a change in them applies to a trial conducted after the change even in respect of an earlier act.

But the grouping conceals a category of rule that behaves differently. A provision which raises a presumption against an accused, or which places on him the burden of proving a fact, alters what the prosecution must establish in order to succeed. Such provisions appear throughout the special criminal statutes, and their operation in time is treated with the caution due to substantive law rather than the freedom accorded to procedure. The safer formulation is that evidence is procedural as to the mode of proof and substantive as to the allocation of the burden.

6. Key Takeaways

The position stated shortly

1. Substantive law determines rights, duties and liabilities; procedural law determines the means of enforcing them. The test is what the provision does, not the statute in which it sits.

2. Substantive criminal law is prospective, and the rule is constitutional. Article 20(1) bars conviction under a law not in force when the act was done, and any heavier penalty: Rao Shiv Bahadur Singh.

3. Procedural law is presumptively retrospective, because no litigant has a vested right in a form of procedure: Anant Gopal Sheorey.

4. The presumption yields where a provision, though procedural in form, creates a new disability or obligation or impairs a vested or accrued right.

5. A defect in substantive law makes a conviction a nullity; a departure from procedure vitiates only where a failure of justice has in fact been occasioned, under section 511 of the Sanhita.

6. Substantive protections cannot be waived; procedural objections frequently are, and section 511 directs the court to ask whether the objection could have been raised earlier.

7. Procedure is governed by the law of the forum, so an Indian court applies Indian procedure even to an offence committed abroad under section 208.

8. Entry 1 of the Concurrent List covers criminal law, Entry 2 criminal procedure and Entry 12 evidence, so both Parliament and the State Legislatures are competent and Article 254 governs repugnancy.

9. In the 2023 transition the penal statute is chosen by the date of the act and the procedural code by what was pending on 1 July 2024; a prosecution under the Indian Penal Code conducted under the Sanhita is the ordinary result.

7. Frequently Asked Questions

What is the difference between substantive and procedural criminal law?

Substantive criminal law defines offences and prescribes punishments; procedural criminal law prescribes how a person suspected of an offence is investigated, tried and punished. In India the first is contained principally in the Bharatiya Nyaya Sanhita, 2023 and the second in the Bharatiya Nagarik Suraksha Sanhita, 2023.

Is procedural law retrospective?

Presumptively yes. No litigant has a vested right in a form of procedure, so a change applies to pending proceedings unless the statute says otherwise. The presumption gives way where the provision creates a new disability or obligation or impairs a vested or accrued right.

Why was section 531(2)(a) of the BNSS necessary?

Precisely because procedure is presumptively retrospective. Without an express saving, the Sanhita would have applied immediately to every investigation, inquiry, trial, appeal and application pending on 1 July 2024. The clause converts an immediate switch into a managed transition.

Is a right of appeal substantive or procedural?

Substantive. It is exercised by procedural steps but it vests in a party when the proceeding is instituted, and it is governed by the law as it stood at that date unless the legislature provides otherwise.

Can a person be tried under the IPC but by the procedure of the BNSS?

Yes, and it is common. Where the act was done before 1 July 2024 but no proceeding was pending on that date, Article 20(1) requires the offence to be charged under the Indian Penal Code, 1860 while the Sanhita supplies the procedure, since nothing was saved by section 531(2)(a).

Which List of the Seventh Schedule covers criminal procedure?

The Concurrent List. Entry 1 covers criminal law, Entry 2 criminal procedure and Entry 12 evidence and oaths. Both Parliament and the State Legislatures are therefore competent, subject to Article 254 on repugnancy.

Related Topics

Criminal Procedure: Meaning, Nature, Objects and Importance
When the BNSS Applies and When the CrPC Continues to Apply
BNS, BNSS and BSA: Their Interrelationship
Irregular Proceedings: Sections 506 to 512 and the Test of Failure of Justice
Application and Commencement of the BNSS, 2023