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Judicial Activism And The Certitudes Of Separation Of Powers

THE doctrine of “separation of powers”, a Vintage OR Traditional product of scientific political philosophy, is closely connected with the concept of “judicial activism”. “Separation of powers” is embedded in our constitutional set-up as one of its basic features. The concept of judicial activism has its origin in the exercise of the power of judicial review by our judiciary, specifically its adjudicatory power under Article 32 and 226 of the Constitution. The power of judicial review is integral to our Constitution, which means that it cannot be done away with by any legislative enactment, even a constitutional amendment. Bagehot, the British constitutional expert, had once spoken of “separation of powers” in the context of the unwritten Constitution of Great Britain and to put in place a system of non-interference by the legislature, the government and the judicial officers.


The doctrine of “separation of powers” envisages the concept of division of powers. In India, the fountain-head of power is the Constitution. The sovereign power has been distributed between the three wings ~ the Legislature, Executive and the Judiciary. The legislature , whether of Centre or of the State, is supposed to be engaged in framing laws. The task of the executive is to govern with the assistance of those laws . And the task of the judiciary is to resolve all disputes by interpreting the laws and plugging the gaps, if any.

The doctrine of “separation of powers” envisages a tripartite system. Powers are delegated by the Constitution to the three organs, and delineating the jurisdiction of each. Such a tripartite system also exists in the heavenly abode of Brahma, Vishnu and Maheswar, who have between themselves divided their eternal omnipotence with a fundamental clause ~ none will make any attempt to perform any other’s duties. Nor will anyone transgress into the other’s domain. In the heavenly abode, Brahma is engaged in creation (as the Legislature frames the law on earth); Vishnu runs the administration and maintains law and order (as the Executive does in the mortal world); and Maheswar sets things right should there be any violation of the heavenly code. This is similar to the Judiciary’s role in respect of the acts of omission and commission of the Legislature and the Executive. Each of the three gods operates in His exclusive domain and none has any complaint against any other. A perfect harmony exists in their Celestial world.

The judiciary with its power of “judicial review” takes a call on the acts of omission and commission of the Legislature and of the Executive in the context of the constitutional provisions and the well-established principles of the rule of law, based on the concept of “fairness”. The concept of fairness encapsulates all concepts of the rule of law and justice. The power of judicial review is vested in the judiciary alone, indeed to scrutinize the actions of the two other wings of the State and in respect of their legal and constitutional validity or otherwise.

Significantly enough, such power of review is not vested in either the Legislature or the Executive. Neither has the right to scrutinize the Judiciary’s acts of omission and commission, if any. This exclusive authority saddles the judiciary with greater responsibility to be more careful and cautious while exercising its power of judicial review. It has to honor and not breach the avowed principle of “separation of powers”. However, this power of judicial review is not and cannot be a plenary power as it has certain limitations. The contours of such limitations have been mentioned in the Constitution, notably in the “doctrine of mutual non-interference”, which is again very much embedded in the doctrine of “separation of powers”. It is enshrined in our Constitution that none of the wings, while exercising the power allotted to it, will cross its own boundary as delineated. Nor will it permit another to breach its boundary.

Therefore, a constant and effective mutual vigil is expected to ensure the sanctity of the doctrine. There is no ‘buffer zone’. There is also no “no-war’ zone. The limit of the boundary of one organ is followed by the spheres of the other two, but they are not intertwined. In a sense, “separation of powers” places a limit to the active jurisdiction of each organ of the State. It serves as a check on tyrannical tendencies in a democracy, that can destroy the basic structure of our constitutional scheme of things. The doctrine is also intended to ensure liberty and justice; the power of judging is separated from the legislative and executive functions. The absence of a system of checks and balances can blur the boundaries of separation.

Nevertheless, the boundaries are not watertight compartments; the Constitution has provided a ‘limited right of interference’. For example: a) the Executive can perform legislative functions by way of promulgating an Ordinance (Article 123 and 213); b) the Judiciary has been delegated with Legislative functions under Article 146(2); c) the Legislature has been conferred with adjudicatory power to deal with all developments inside the legislature. The judiciary cannot enquire into the proceedings of the legislature (Articles 118, 208 and 212).

However, these constitutional provisions cannot be described as “permitted spheres of interference”. These are intended to sub-serve the objectives of the system, to avoid a possible impasse that can be created by the peculiar circumstances.

The gaps left by the legislature in the matter of legislating or by the executive in the matter of executive governance are expected to be filled by the judiciary. It may get activated either by the people or by its own motion, for example sue motto. On being activated, the judiciary exercises its power of judicial review to scrutinize the acts of omission or commission of the legislature and the executive. On the basis of such scrutiny, the judiciary prescribes the remedial measures to remove or cure the maladies diagnosed.

Judicial activism must be defined as a judicial response to a situation warranting immediate remedial measures. It is an affirmative concept that has to be marked by promptitude, diligence and consistency. No exception can be taken to such activism. It is, indeed, always welcome. In the event of excessive activism, it of course becomes a case of judicial over-activism. Any action in excess, even if judicial, deserves to be deprecated. It is a breach the Rule of Law. And any kind of judicial over-activism must also therefore be equally, if not more severely, deprecated.

Judicial activism per se ought not to be opposed if it is intended to cure an existing malady that has not been addressed by the Executive or the Legislature and has an impact on a large number of people. However, this is subject to two conditions ~ (i) the action is within the framework of the Constitution; and (ii) the action of the actor does not cross the contours of its own jurisdiction and trespasses into the jurisdiction of another wing of the State. These conditions are applicable to all the three organs of governance. And that includes the judiciary. It cannot claim that these conditions are applicable to the legislature and the executive. The judiciary is not amenable to this golden rule of constitutional obedience and non-interference.


The Law Commission of India Invites Suggestions on Electoral Reforms

The issue of ‘Electoral Reforms’ has been referred by the Central Government to the Law Commission of India for consideration and for suggesting comprehensive measures for changes in laws relating to elections. Acknowledging the importance of the subject, the Commission has prepared a Consultation Paper eliciting feedback from various stakeholders.

The election system comprises a complex web of different nuances – legal, political, economic, social, religious, ethical and moral and this complexity makes the task of suggesting reforms quite challenging. No single aspect of election process can be looked at in isolation from others. Most, if not all areas of these aspects, are of the nature where law either interacts or need to interact more closely. The focus of the Consultation Paper is, therefore, to identify those areas and aspects where law should play more prominent and engaging role.

The Commission proposes to focus largely on issues such as: qualifications/disqualifications of those seeking election, or disqualification of the persons already elected; modes, methods and quantum of funding of elections; transparency, accountability and sources of spending by political parties and their respective candidates during elections; regulations and ethical conduct of political parties or candidates participating in elections; filing of false affidavits – A ground for disqualification; electronic and print Media – impact of ‘paid news’; quantum of punishment for electoral offences; and adjudication of election disputes etc.

The Commission, through the Consultation Paper, has solicited views/suggestions of political parties, states, civil society, and all other stakeholders, inter-alia, on the aforesaid issues.

The Consultation Paper has been made available on the website of the Law Commission of India – and can be downloaded freely.

Those desirous of submitting comments/suggestions may send their written comments/suggestions to the Secretary, Law Commission of India, Hindustan Times House, 14th Floor, Kasturba Gandhi Marg, New Delhi-110001 by E-mail: or by hand/post latest by 30th June, 2013.


She Wanted The SIX To Be Burnt Alive”: But Are We Capable Of Fulfilling Her Last Wish ?

The Nirbhaya case has brought into light issues and loopholes in our laws, the clear apathy of politicians towards the issue, insensitivity of the police, juvenile laws and how they have been misused in more ways than possible. As one slowly comes to terms with her death, there is a dire need to reconsider the laws pertaining to punishment of the perpetrators of rape in particular and laws with respect to juvenile crimes.

One of the accused in the case happens to be a minor because of which the maximum punishment he may be slapped with would be three years in reform facility. The other factor which favours him would be that he is also entitled to get bail the minute the chargesheet is filed. The current situation breathes into being a very important question of whether the juvenile laws are being misused and if it is time to bring about reforms in the law rather than send the minor to a reform facility.

The six accused were Ram Singh (driver), Mukesh (brother of Ram Singh), Vinay Sharma (gym instructor) Pawan Gupta (fruit seller), Akshay Thakur (cleaner) and Muhammad Afroz (Raju) who was the minor. Even as the five accused are charged for murder and abduction, Raju’s name seems to be missing from the chargesheet simply because he is a minor. According to the police, he was the most brutal and afflicted the most amount of harm to the girl. He not only raped her twice which includes once when she was unconscious but also brutally pulled out her intestines. He further suggested she be thrown out of the moving bus naked and be run over by the same bus in which she was abducted and raped.

The age of the minor is unclear as his matriculate certificate suggests that he was born on July 20th 1996 (Government High School, Naushehra Cheema, Taran), but during the interrogation he said he was born in 1991 and his village certificate says he was born on July 5th 1993. Since there is a huge controversy about his age he will now be subjected to ossification which is a ‘bone test‘ which has been conducted to ascertain his age. If he is proved to be a minor in this test he will not even spend a night at Tihar Jail even though he rightly deserves to be there or even worse.

To add to the shame is his mother who is neither willing to tell the police his age nor the number of years of her marriage after which he was conceived. Not only is she saving a criminal but also saving someone who could become a major threat with his psychopathic tendencies.

This brings to us to an important question: what is the definition of juvenile and can there be amendments made with respect to the rules and laws regarding it? A boy who has not yet attained the age of 16 or a girl who is not yet 18 come under the juvenile law. This was then amended in 2000, by the United Nations Rules and then changed to 18 for both boys and girls.

Vikas Pahua who is an advocate states that “the objective of the Juvenile Justice Act is to reform the child because it is possible that he may have committed the act under influence”. The one thing he fails to understand is there is a huge difference between being a child and being a pre-mature perverted adult. According to the doctors, only five percent of Nirbhaya’s intestines were inside her body, clearly not something a child would do. Vikas then continues to say, “A juvenile has got some constitutional protections and therefore he has to be treated separately”. Why is it that a juvenile criminal is subjected to protection and not an innocent woman? This is a question which resonates in the back of my head.

The 1850 Apprentice Act which is provided for children states that children between the ages of 10-18 years, when convicted in courts will be provided by vocational training which is intended for their future rehabilitation. Isn’t it high time that a crime be punished on the basis of severity and brutality than the age of the accused? This was not the first time Raju was arrested, as he was also arrested previous to this in Amritsar while allegedly waiting for someone to hand him two kilograms of heroin. Would he still be considered innocent and would justice be served by just sending him to a reform facility?

Taking advantage of this loophole in the laws was also Ajmal Kasab (the first foreigner to be hung on Indian soil) who said he was a minor too, but was then subjected to the bone test and the result proved he was 21 years of age and hence not considered under the Juvenile Justice Board.

In 2009, 346 cases were reported under the Juvenile Justice Board in Lucknow, which has jurisdiction in Rae Bareli and Barabanki besides the state capital. Out of the cases reported, 35 were for rape and 20 for murder. Juvenile crimes initially consisted only of minor crimes like chain snatching and theft but now they have escalated to murder and rape, only pointing out to the need for an amendment of laws apt for the crimes performed irrespective of the age of the accused.

64% of juvenile crimes are committed in the age bracket of 16-18 years which also includes the minor accused in the brutal Delhi Rape Case. According to a statistic provided, there has been a 34% rise in rape by juveniles between 2010 and 2011. According to statistics provided by The Times of India, only 5.7% of the juvenile are homeless, stating that the absence of family or moral guidance provided by parents is not a factor. To add to it, 57% of the juvenile criminals belong to poor families indicating poverty may play an important role. There has also been a 188% rise in rape cases by juveniles since 2001 followed by abduction of women and robbery.

Some of the other recent cases are, Zeeshan, a minor, who belongs to a business family, who under the influence of drinks and along with five friends abducted a 13-year-old house maid, raped her in the car and then threw her in the outskirts. Shashi, a 17-year-old son of a service man was convicted of raping a 10-year-old in Rae Bareli. The police also confiscated porn videos and obscene magazines from his hostel room, thus pointing out to the fact of how pornography not only kills the innocence of a child but can also instigate them to commit such heinous crimes. (Names of accused and victims have been subjected to change.)

As Raju may breathe a sigh of relief with his brief encounter with death, the victim’s friend has finally gathered some courage to talk to a news channel in which he revealed that “when he met his friend in the hospital, she said she didn’t want the six accused to hang, but be burnt alive.” This not only can be considered her last wish but also points to the fact she wanted all six to face the same punishment. It is high time we change laws which have loopholes and in which criminals find a safe hiding place and grant them their well deserved place and send them to the guillotine. Ironically the only one who can be ‘nirbhaya’ without the amendment of laws would be these people who not only commit crimes but also get away with the consent of the government.


If ACP suspended after rape, why not police chief: Delhi HC ?

NEW DELHI: The Delhi high court lambasted the city police on Wednesday for its failure to fix accountability at the top for lapses that led to Nirbhaya's gang rape, asking why just lower rung policemen were suspended after the brutal crime and not the police commissioner.

A division bench of Chief Justice D Murugesan and Justice VK Jain trained its guns on commissioner of police Neeraj Kumar after the police repeatedly failed to furnish names of the officers on patrol duty on the route taken by the chartered bus in which the crime took place on December 16.

After special public prosecutor Dayan Krishnan claimed that the police had taken action and suspended an ACP, he faced the chief justice's wrath. "Why just an ACP suspended as per your report? Is he the only one responsible for the security lapses? Why not the DCP? Why not the police commissioner? Who is the controlling officer for Delhi Police? We are not happy with this," the chief justice said.

The court trashed the status report given in a "sealed cover" by Krishnan, saying it failed to provide names of officials deployed in the three police vans stationed on the route the bus had taken. "You can't go like this, don't try to save the officials," the bench said.

Steps for safer Delhi

  1. The task force set up to look at steps to make Delhi safer for women, announced a number of measures on Wednesday. Home ministry said these would be strictly implemented.

  2. All public transport buses to have webcams linked to a CCTV network These buses must have GPS up and running by Feb 1 Owner and crew of every vehicle on school duty must undergo police verification by Feb 1

  3. All crew members of public transport vehicles, including autos and taxis, to get photo IDs by March 1

  4. Cops in plain clothes to travel in buses on 'vulnerable routes'

  5. Helplines for police (100) and women (1091) to be expanded and spruced up

  6. Discotheques to stop playing music by 12.30am, close down by 1am

Source: The Times of India


Question mark on the justice delivery system in India ?

Is The Indian Judiciary Too Busy To Do Their Jobs Right?

Do we require Separate national budget for judiciary ?
Presently the budget for Judiciary is very low.

If they sent the victimized girl to Singapore for better treatment, I suggest they send the culprits to Saudi Arabia for better justice.

The above mentioned post on social networking sites has created a question mark on the justice delivery system in India. Recent RTI has revealed that there are over 43.22 lakh cases pending in High courts (as on December 2011) and also 262 vacancies of judges in courts. It’s been reported several times about how litigants died when the case was pending due to court proceedings and delay in justice. Till today we are unable to implement the All India services in Judiciary which is a provision in constitution of India under article 312. If the provision of constitution is implemented, the vacancies in judiciary might have come down and people hope for a speedier justice might come true. Even Former Justice Kapadia wants the government to consider an “idea” for a separate national budget for judiciary. Presently the budget for Judiciary is very low.

Sometimes counsels have argued that the courts should ordinarily grant bail to the accused because in view of how long the cases will be pending the High Courts, a matter will come on board after a long time and by that time the accused might have completed his sentence. The Patna High Court expressed his anguish when a magistrate took nine months to pronounce a judgment. The words used by him for expressing his judicial wrath are the following:

“The magistrate who cannot find time to write judgment within reasonable time after hearing arguments ought not to do any judicial work at all. This Court strongly disapproves the magistrates making such a tremendous delay in the delivery of his judgments.”

Courts have time and again pointed out, would it be just at all for the Court to tell a person:
“We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?”

What confidence would such administration of justice inspire in the mind of the public? While the problem of delay looks intimidating, it can be dealt by having additional fast track Courts, making legal services much more striking thereby drawing high-quality lawyers and filling up all available jobs at various Courts. Even Courts Traineeship at district courts should be initiated to train young lawyers. Presently the court traineeship programme at Supreme Court and high court is only for some selected law schools. It should be made open to everyone and should be decided on All India Test.

The government recently approved setting up of ‘National Mission for Justice Delivery and Legal Reforms‘ that is aimed at increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and by setting performance standards and capacities. The confidence of common litigant tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Delay in Justice has forced villagers in Punjab to set up its own “high court” to resolve disputes due to rising litigation costs and slow pace of justice . Pulha village elders claim the “court”, comprising 35 “jury” members, has settled over 250 cases primarily related to land disputes piled up over last three years in as many months. Justice, as we have often observed, must not only be done but must manifestly appear to be done. Common Man in the midst of all these things is just suffering from delay in justice.


While We Were Protesting, Women “Nationwide” Were Being Raped

Shame on all the men and women of India who worship goddesses, who have sisters and mothers and are still turning into gutless mute spectators to the devil like treatment that Indian women, are getting nationwide. One has no right to call himself a man if he stoops down to the level of forgetting what a woman’s dignity is. 16 December was the horrific night when a young brave girl saw what devils look like. Today, though she is no more with us, her courage made us see how petty we are and how impotent the law is; how crippled the Indian democracy is when it cannot protect its own women. Though the brutality which the 23 year old girl faced on 16 December, 2012 at the hands of those beasts, is incomparable, it should be noted that similar incidents are on a rise nationwide on an alarming rate.

Following is a glimpse of the beastly behaviour against women nationwide:-

  1. 16 December: Rape and brutal assault of a 23 year old girl in a moving bus by 6 men in the national capital.

  2. 21 December: A 40-year-old woman was allegedly gang raped in Welcome area of the national capital by three persons.

  3. 24 December: A 19 year old girl was molested in a moving auto rickshaw in Bhubaneswar and thrown out when she resisted and raised an alarm. The incident took place when she was going to the Master Canteen area from Barmunda Bus terminal.

  4. 25 December: A nine-year-old girl was allegedly molested by her employer in Govindnagar police area in the city of Kanpur on 22 December. Her parents lodged an FIR on 24 December after which the accused was arrested.

  5. 27 December: A 17-year-old in Patiala who had been gang-raped committed suicide because the police allegedly embarrassed her and refused to register a case for over a month.

  6. A nine-year-old girl was found murdered with injuries on her face in a banana field in a village near Tirupattur in Vellore district in northern Tamil Nadu on 27 December night. The teen was sexually assaulted on Diwali by two men. Though her family was threatened by the alleged rapists, they decided to file a police case two weeks after the attack.

  7. 28 December: An eight-year-old girl was allegedly raped and brutally beaten to death after being lured by a local youth in Bilanda village in Fatehpur district of Uttar Pradesh.

  8. Four youth allegedly abducted and gang-raped an 11-year-old girl for four days in Kanpur.

  9. A school teacher was sexually assaulted in Amroha and a girl was raped in Muzaffarnagar in separate incidents reported from different parts of Uttar Pradesh during the past 24 hours on 28 December evening.

  10. 29 December: The accused in a case, Sabanna Nalappa Poojary (24), who is already married, kidnapped a 15-year-old girl from an agriculture field on December 19 in Handarki village in Sedam taluk in Gulbarga district of Karnataka.

  11. A married migrant woman from the district Solan of Himachal Pradesh got gang raped in Amritsar, Punjab.

  12. Fifty-two-year-old Mahasin Ali wakes up with a start every 15 minutes in his ICU cubicle at a hospital. Eyes wide open and gasping for breath, he kept asking for his wife, who was allegedly gang raped and put to death at Sonakharki in Barasat, West Bengal on 29 December evening.

  13. 30 December: A traffic police constable was suspended for molesting a girl who came to deposit her challan fee at the traffic police lines in Sector 29 of Chandigarh.

  14. In Singrauli, district in Madhya Pradesh, an 18-year-old young tribal woman labourer working at the construction site of a major power plant project was allegedly gang-raped by four men just a few hours after the state director general of police visited the district on 28 December.

  15. 31 December: A girl passenger was allegedly molested by the bus conductor on board a mini bus in Baghpat, Uttar Pradesh at day time and in the presence of other passengers. When she raised an alarm, the accused assaulted her and started to push her off the moving bus. It was only when elder sister of the victim begged for mercy that she was spared.

This is just an overlook at the present scenario. A lot many such cases had been reported in the past few months or even before that. Yes, it is the duty of law and the government to protect every girl and woman of the nation but, it is also our duty to start working right from the base of the society. Blaming the law alone is not going to help us out. In order to clean the society, we need to clean it inside out. Even today, in this 21st century, we have people in the society who look down on the victim of rape or sexual assault. There are people who state that women dress provocatively which leads to rapes and sexual assaults. What needs to be immediately done is start teaching the males how to respect women, sympathise and help a victim rather than looking down on her and most importantly, voting for the right electoral candidate when elections come by. Many politicians act irresponsibly when in power and they should not be given another opportunity to crush the integrity of the common public and move over.

In the recent incident, where both ,Prime Minister Manmohan Singh and Delhi Chief Minister Sheila Dikshit asked the reporters “theek hai?” after recording a statement read from the paper to address the public in accordance with the Delhi gang rape of 16 December, they made two blunders. First, they should not have read the address from the paper. If a person is leading such a huge mass of people and he /she cannot even talk for a brutally assaulted victim without a paper, then maybe it is time for him/her to step down from the seat of power. Second, if the two were really so concerned with the issue, they need not have asked “theek hai”, it just demonstrated that they were not handling the issue properly and were not involved with the public.

Lastly, all those men and women who turn mute spectators when something this atrocious is going on with a fellow human should be ashamed of themselves. One has no right to expect help in their need of time, if one intentionally, does not help another fellow who needs it. Why do you cry when your daughters are assaulted if you turned a blind eye to the assault of someone else’s daughter? Even after all this, if you are asking your daughters to dress to dress up from head to toe and come home early rather than teaching your sons to respect every woman, then you do not deserve a girl child. These barbaric crimes have tested our patience every now and then and this time they spat right in our faces. This is a crime against women and against humanity. What India needs to do right now is change the way the society looks at the victim, raise united voices whenever such crimes are encountered, make sure that the accused does not get away with it and make sure only a clean and right electoral candidate sits high in the seat of power who is genuinely concerned about the public. What the Indian law and government need to do right now is take full responsibility of the people, act strictly against such heinous crimes, set up speedy trials for crime against women and give the worst punishments possible for rapes and sexual assaults so that any man that walks on earth gets a gooseflesh thinking of the punishment.


Delhi HC slams cops over use of section 144

NEW DELHI: Frowning at the frequent use of preventive section 144 of the CrPC, the Delhi high court on Wednesday questioned the Delhi Police for imposing it at India Gate.

"Instead of imposing 144 CrPC you must maintain law and order. It can't be used just like that," a bench of Chief Justice D Murugesan and Justice VK Jain observed, chiding the police for imposing the section so often. Even though the HC refused to issue guidelines on when and how the section can be imposed by the police, it agreed to examine if the police were justified in using the section in and around India Gate in the heart of the capital during the recent protests against the gang rape and murder of a 23-year-old girl.

There are rights to movement and speech and expression. Was using this section the only answer? Frequent use will make it lose its sanctity, the bench noted reserving its order on a petition challenging the imposition of the section.

The court was hearing a writ filed by Delhi-based advocate Anand K Mishra, who alleged that the prohibitory order was imposed in an "arbitrary" manner and without following the procedures enshrined under the CrPC.

Additional solicitor general Siddharth Luthra and standing counsel Neeraj Chaudhari, representing the police and the Centre, opposed the petition saying guidelines for imposition of prohibitory orders under section 144 of CrPC (which deals with power to issue order in urgent cases of nuisance or apprehended danger) cannot be framed as all cases are "distinguishable" and contain different facts.

However, Mishra maintained the police erred in resorting to section 144 and argued that the "whole capital was traumatised over the gang rape and thousands of girl students and others, who do not feel safe, came to join the social movement. It was not a political movement. The section (144) cannot be used to curtail the constitutional rights".

He also cited various apex court judgments including the verdict on the Ramlila Maidan incident involving Baba Ramdev and his supporters and sought framing of guidelines on the issue.

The PIL, filed against the ministry of home affairs, Delhi government and the police, had sought a direction to declare as "unconstitutional and illegal" the prohibitory orders issued on December 22.

Kashyap Vyas

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