“There are too few women in the higher levels of Indian Judiciary and only three women judges in the apex court here is just “token representation”….
“There is a bias against women in India in terms of judicial leadership, although people don’t seem to realise their bias.”
-Justice Sabrina Mckenna – Hon’ble Supreme Court of Hawaii
India is a country where for a woman to rise to the top echelons of the societal pyramid is more often than not the exception and not the norm. When we are in colleges and universities we are taught about the principles of equality between the two sexes, but when we join the society, we come across the ground realities of Indian Society which dismiss the idea of gender parity as a mere utopian idea.
It is for the third time in history that a woman has been elevated as a Judge in Hon’ble High Court of Himachal Pradesh. Mrs. Jyotsna Rewal Dua, who has had an illustrious legal career, has been recommended by a resolution of a collegium of the Hon’ble Supreme Court for the aforementioned elevation. If appointed, she will be the sole woman judge of the Himachal Pradesh High Court.
The Late Mrs. Leila Seth, the first woman to serve as the Chief Justice of a High Court in India, which incidentally happened to be the Hon’ble High Court of Himachal Pradesh, in an interview, recounted her experience as a Chief Justice in the following terms:
“In most cases, male lawyers/judges, especially in upper Himachal, had a feudal mentality. They were not used to a woman sitting on their head. But as I was a mother of two boys, I knew how to handle men sensitively. I would gently ask their opinions first before ‘imposing’ mine on them. In Delhi, my male colleagues would introduce me as “meet our first lady judge”. I would take objections saying, ‘do you ever introduce your male colleague as ‘male judge’, so please avoid prefixing lady before me, a judge is a judge…. It didn’t often go down well with many.”
The Late Hon’ble Chief Justice’s experiences showcase the difficulties they the faces not only in the legal profession, which is perhaps just a microcosm reflecting the wider picture but also in Indian society. In this context, it is all the more impressive for Mrs. Dua to be recommended for elevation. As juniors, we would look on in rapt attention in the courtroom as Mrs. Dua made her submissions in a concise and precise manner without ever impinging on the court’s valuable time. Perhaps it was the ‘to the point’ nature of her submissions or perhaps her reserved nature, an extremely attractive quality in a judge, which struck a chord with the Collegium. Still, it is heartening to note that in the legal profession, which seems to be a bastion for men, a lady can rise to heights which an entire society is designed to keep her from.
In total, eight women have served as Judges of the Hon’ble Supreme Court in independent India. This number shows the extent to which women are suppressed. However, not to be entirely pessimistic, the Indian Judiciary and the legal profession as a whole seem to be at the very least trying to keep up with the times. At present, there are three sitting women judges at the Hon’ble Apex Court which is at the very least, an improvement.
Furthermore, in April, 2017, with the elevation of the Hon’ble Mrs. Indira Banerjee as the Chief Justice of Madras High Court, it was a momentous occasion for the Indian Judiciary when women headed the four Historical High Courts of Delhi, Bombay, Calcutta and Madras, these High Courts being first few set up in colonial India. These facts show that while the Indian legal profession still remains tilted in the favor of men it is moving in the direction of the utopian equality which was mentioned earlier.
As far as the recommendation to elevate Mrs. Dua is concerned, it could not have come at a more opportune time. The perspective of a woman is needed to garner a more humane approach while dealing with cases of rape, divorce, dowry and other matters where a male judge may not be fully equipped to understand the emotional difficulties women go through during these trials and tribulations. While the resolution to recommend Mrs. Dua for elevation is a welcome step, this author hopes for more women occupying our Constitutional and other critical positions in society and of course, the government.
Post by Author Ishan Kashyap (Advocate, HP High Court)
The Opaqueness of the Collegium Orders and Resignation of a Competent Lady Judge
Shimla-Justice of Madras High Court “Justice Vijaya Kamlesh Tahilramani”, Days after the Supreme Court Collegium declined her request for reconsideration of transfer to Meghalaya High Court, has preferred to resign rather than to succumb to the order of the collegium.
Justice Tahilramani is one of the senior-most judges and one of the two women High Court Chief Justices. She was the third woman to assume the charge of Chief Justice at the Madras High Court.
The Collegium had ordered on September 3 that the transfer was recommended in the interests of “better administration of justice”. No other reason was provided in the transfer order.
The Madras High Court is one of the oldest and the fourth largest in the country, whereas the Meghalaya High Court is among the smallest. The transfer was being seen as a punishment by many as it is rarely seen that a serving Chief Justice of a big High Court is given a charge of a smaller High Court. From being the Chief Justice of a court that has a sanctioned strength of 75 judges, Justice Tahilramani was chosen to head a High Court with just three judges.
Instead of accepting her obviously humiliating transfer, Justice Tahilramani has chosen to resign.
As the acting Chief Justice of the Bombay High Court, Justice Thaliramani in May 2017 upheld the conviction of 11 people for life imprisonment in the “Bilkis Bano gang-rape case” (March 3 in 2002, during the riots, 14 people – including four women and four children – were killed while 19-year-old Bilkis Yakub Rasool who was 5 months pregnant was gang-raped in a moving truck and left to die. But she survived the brutality and fought for justice). As a judge of the Bombay High Court J. Thilaramani had ruled that 11 of the accused deserved life sentence.
In another important case as a judge of Bombay High Court, Justice Thaliramani laid down guidelines regarding pregnant women prisoners.
She rejected the plea of 1993 serial blasts convict to be released on parole to attend to his ailing wife in one of her last judgements for the Bombay High Court.
“Consideration of sympathy for him cannot be permitted to overshadow the consideration regarding the security of the society,”
the division bench of the acting Chief Justice and another judge had observed.
Is “Better Administration of Justice “a “Self-Explanatory Reason”?- The Opaque and Arbitrary Decisions by the Collegium
If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.
Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head as a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.
In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:
- There must be full and effective consultation with the
Chief Justice of India.
- The power of transfer can be exercised in public interest only and not by way of punishment.
- Judicial review of the decision of the President to
transfer a judge.
However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, judges hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in public interest or in the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some element of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.
The great Mr. Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. the object of the purpose needs to be clearly spelt out in such orders and this cannot be done in a slip-shod manner.
Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.
The resignation of the Hon’ble Justice Vijaya Kamlesh Tahilramani is another dark chapter in the matters of transfers of the judges of the Superior Courts. The Hon’ble judge not only ‘did not give her consent‘ but also ‘opposed her transfer by writing a letter to the collegium’. Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and to the people of India. Transfers without reason can instil fear in the minds of the judges, the first casualty of which would obviously be the justice itself.
The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provision, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary” in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:
“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”
A Roar of a Lion- Right to free speech, Right to Dissent, Sedition and Majoritarianism
Of Roaring Lions and Squeaking Mice!
Francis Bacon had once described the judges as ‘Lions under the throne.”However decades later in the famous Second World War case of Liversidge v Anderson, where Lord Atkin delivered his powerful dissenting speech, he commented on the arguments of the lawyers and stated that this level of reasoning would have been acceptable to the Court of Kings Bench in the time of Charles I (a monarchy) but not in a democracy, sadly this reasoning was accepted by all of his brother judges. The subjective interpretation adopted by his brother judges who were then pleasing to politicians provoked a letter to Lord Atkin from Mr Justice Wintringham Stable. The letter expressed approval of Lord Atkin’s dissent, and then added:
“I venture to think the decision of the House of Lords has reduced the stature of the judiciary, with consequences that the nation will one day bitterly regret. Bacon, I think, said the judges were the Lions under the throne, but the House of Lords has reduced us to mice squeaking under a chair.“
The time is right to celebrate the courage shown by one of our very own, Justice Deepak Gupta, who has roared like a lion in times where just speaking against the ruling Governments would amount to sounding of the death knell for some. In times where we have judgments after judgments trying to bypass the constitution in novel ways so that the mighty and the powerful may not get offended (remember the dissent of Justice Chanderchud where he talks of a fraud played on the constitution and present grant of adjournments in habeas corpus petitions in SC), in times where police is more active in catching hold of people who have written something on their facebook wall or WhatsApp (under an extinct provision of Section 66A) rather than looking for rapists and murderers, in times where a lawyer if he knows the politician he becomes a judge or an advocate general, in times where dissatisfaction with the government will brand you as an anti-national, in times where freedom of speech is being attacked across the country and fight for human rights and civil liberties is undermined in every nook and corner, a sitting judge of the Supreme Court, and our very own, ‘son of the soil’ has had the spine to publically say THE TIMELESS TRUTH of our democracy.
The Hon’ble Judge expressed himself On September 7. The following are edited excerpts of his lecture.
Right to Dissent
There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.
The right to freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree.
Thus, the right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief.
Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with the well-accepted norms of society. If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. If a person does not ask questions and does not raise issues questioning age-old systems, no new systems would develop and the horizons of the mind will not expand.
Whether Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established, if they had quietly submitted to the views of their forefathers and not questioned the existing religious practices, beliefs and rituals.
In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under the Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.
The judgment of HR Khanna, J. in A.D.M. Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill will. First and foremost part of the duty is to do one’s duty without fear.
Law of Sedition
It was enacted at a time when India was ruled by a foreign imperialist colonizing power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views.
Interestingly, though sedition was an offence in the first draft of the Indian Penal Code (IPC) drafted by Lord Macaulay, somehow this did not find its way into the IPC when it was enacted in the year 1860. The IPC was amended in the year 1898 when Section 124A was introduced.
When Section 124A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force.
Interestingly, another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision.
Though Section 124A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendera Chunder Bose wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years.
Subsequently, the British used the law of sedition to curb any demand for independence said Gupta citing the case of Queen Empress v. Bal Gangadhar Tilak.
I would also like to refer to the Father of the Nation Mahatma Gandhi, who in this city of Ahmedabad was charged with sedition. Appearing before Sessions Judge Broomfield, Mahatma Gandhi while dealing with the word ‘disaffection’ had this to say: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”
I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition. However, the Mahatma was sentenced to undergo imprisonment for 6 years.
You cannot force people to have affection for the government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.
However, in present times there is no healthy discussion but only shouting and slanging matches, lamented Justice Gupta. If one does not agree with another, that person becomes an anti-nationalist.
There is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.
The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted.
Sedition can arise only against a government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the government….Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.
Police cannot deal with law and order problems but have time for sedition
Majoritarianism Can’t be Law
During the dark days of Emergency, an attempt was made by one party President to equate his leader with the country. I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual.
A majority government does not mean that minority voices should not be heard. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Besides, he also stated that even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as the majority, it cannot be said that they represent the voice of all the people.
The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under POCSO carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section 153A or implementing the provisions of Section 66A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity.
It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.
Thus, the law of sedition is more often abused and misused and the people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is an incitement to violence or public disorder.
But the law as laid down in Kedar Nath Singh’s case regarding sedition is not being followed.
‘Right to Criticise Government’
I think our country, our Constitution and our national emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. You may force or compel a person to stand while the National Anthem is being sung, but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?
In Chhattisgarh, a 53 years old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition.
Criticism of government by itself cannot amount to sedition. India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives.
The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have the right to express their views.
Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.
Judiciary Not Above Criticism
In fact, I welcome criticism of the judiciary because only if there is criticism, will there be an improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected.
Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.
Section 66A of the IT Act, which put restrictions on the freedom of expression in an online space, is still being used by the lower judiciary and the police, even after being struck down in the Shreya Singhal case.
It does not speak well of the Indian judiciary that the magistrates are unaware of the law of land, and day in and day out, we hear of magistrates granting judicial custody or police remand in relation to such offences.
The recent trends have instilled fear in people when it comes to expressing their opinions on criticising governments in power. A very important aspect of a democracy is that the citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but a mere expression of such views cannot be a crime and should not be held against the citizens.
No doubt, the views must be expressed in a civilised manner without inciting violence but a mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences.
‘Nationalism is a Great Menace’
Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the Satyagrah movement. He, who wrote the National Anthem also held the view that ―nationalism is a great menace. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today‘s world, if any person was to say ―nationalism is a great menaceǁ he may well be charged with sedition.
If this country is to progress not only in the field of commerce and industry but to progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled. I can do no better than quote the words of Gurudev Rabindra Nath Tagore:
“Where the mind is without fear and the head is held high,
Where knowledge is free.
Where the world has not been broken up into fragments
By narrow domestic walls.
Where words come out from the depth of truth,
Where tireless striving stretches its arms towards perfection.
Where the clear stream of reason has not lost its way
Into the dreary deserts and of dead habit.
Where the mind is led forward by thee
Into ever-widening thought and action.
Into that heaven of freedom, my Father, let my country awake.”
“Shimla Town Hall’s” Dignity Restored as High Court Bars its Conversion into Govt Office
Shimla-The issue of utilizing the British-era Town Hall building for ‘public purpose’ and not as a ‘Government Office’ was settled by the Hon’ble High Court today in a public interest writ. The Municipal Corporation building or the Town Hall is located on the Mall Road. Originally this heritage building was designed as ‘New Library and Offices’ by a Scottish Architect, Mr. James Ransome. The original building, designed as a library, was constructed in 1908, but after a few decades, the offices of the Municipal Corporation came to be located in the said building.
Recently, this heritage site was restored under an exhaustive Rs 6 crore conservation project. Asian Development Bank-funded the restoration of the building, stating it to be a “priceless architectural marvel”.
A Division Bench comprising of Chief Justice V Ramasubramanian and Justice Anoop Chitkara on September 6, 2019, passed an order, which stated that the building should be used only for ‘public purposes’ and not to house any ‘Government Office’ other than that of the Mayor and Deputy Mayor.
The Hon’ble Chief Justice V Ramasubramanian stated:
While there can be no objection to the location of the offices of the Mayor and the Deputy Mayor in the Town Hall, the location of the offices of the Commissioner and other allied officers will certainly convert the heritage building into a full-fledged Government office. While the Mayor and the Deputy Mayor may not be required to sit throughout the day in the office, the Commissioner and his Deputies may be required to sit in the office throughout the day for six days a week. They may also have to deal with the public, who may have to seek the services of or the statutory.
Further, the Hon’ble Chief Justice stated:
We are of the considered view that while permitting the Municipal Corporation to locate the offices of the Mayor and the Deputy Mayor in the Town Hall, the Municipal Corporation, in consultation with the Government, should come up with innovative ideas to put the Town Hall to best use (i) from the point of view of preserving the heritage, and (ii) so as to derive income from such activities which will showcase the beauty of the hill station and the culture and traditional arts of the people of the State”
As such, the MC Commissioner, Joint Commissioner, and other officials whose offices were located in this heritage site will now have to be accommodated elsewhere.
The court also directed that the MC in consultation with the state government may put to use the rest of the area for housing a high-end café with reading facilities, Information Centre and boutique of traditional arts and crafts for attracting tourists and enriching the cultural experience. The court also directed that an entry fee can be imposed which will provide handsome revenue to the MC.
There was a long-term demand from civil society and citizens that the iconic building must be put to some good use and be developed as a tourist attraction, considering its location in the heart of the town. Today’s order comes as a welcome step for the people of the town and for those who are visiting it.
This heritage building will no longer be a dwelling place of the “babus”, but rather will be a center of attraction – a place to showcase the heritage, art, and creativity of the locals and a place of recreation and learning for the travelers.
Feature Image: Abhishek Lal
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