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Report No. 60

10.4. Distinction between Governmental and other functions.-

Sometimes, a distinction is sought to be made between functions which are "necessarily and inalienably"1 governmental functions (on the one hand) and other functions, and it is emphasised that in the case of the former, the special position of the State should continue. But our experience of the working of the similar distinction which was observed (for some time) with reference to governmental liability in tort, shows that such a distinction, even if theoretically justified, would not be workable, because it lacks precision. In fact, even in other countries, such distinctions have been criticised by the academic world.2

1. See First Report of the Law Commission (State liability in tort).

2. (a) Friedmann Legal Status of Incorporated Public Authorities, (1948) 22 Australian Law Journal, 7.12;

(b) Friedmann Shield of the Crown, (1950) 24 Australian Law Journal.

General Clauses Act, 1897 Back

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