Read below for my response to the Opinion put forward by the
Bhushans on the legal position with respect to the present standoff between the
Delhi Government and the LG on bureaucratic appointments. Their Opinion can be
read at http://www.legallyindia.com/Constitutional-law/opinion-lieutenant-governor-vs-delhi-cm
My response follows:
Pavan Bhushan's doubly-vetted interpretation of the
following article is flawed and wrong.
Article 239 (3)(a) of the Constitution: “(3) (a) Subject to
the provisions of this Constitution, the Legislative Assembly shall have power
to make laws for the whole or any part of the National Capital Territory with
respect to any of the matters enumerated in the State List or in the Concurrent
List in so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and Entries 64,
65 and 66 of that List in so far as they relate to the said Entries 1, 2 and
18.”
Pavan Bhushan incorrectly interprets this provision when he
makes the following incorrect claim:
"The words ‘in so far as any such matter is applicable
to Union Territories’ further narrow the scope of Legislation on entries of the
State List of the seventh Schedule of the Constitution.
All those entries apart from 1, 2 and 18 of the State List
that are not applicable to Union Territories will be outside the jurisdiction
of the Legislative Assembly of the NCT of Delhi.
For example, Entry 41 of the State List empowers states to
legislate on State Public Services and State Public Service Commission. But
Union Territories do not have any separate Public Service Commission and
officers in Union Territories qualify through the Union Public Service
Commission (UPSC) and belong to the Union Territory Civil Services (AGMUii
Cadre of IAS/IPS and DANICSiii).
Thus, Entry 41 of the State List is not a matter applicable
to Union Territories and the Legislative Assembly of the NCT of Delhi cannot Legislate
under Entry 41."
The qualifier "in so far as any such matter is
applicable to Union territories" in Article 239 (3)(a) only applies to
matters in the Concurrent list and not to matters in the State list.
Therefore the Delhi legislative assembly can make laws on
all matters in the State list except on entries 1, 2 and 18 therein.
Also, the issue of full statehood for Delhi is really a
political issue. The federal/ central government wants to retain control over
land, public order and the law enforcement agency (the police) in the territory
in which it is based.
Given that India is not really a working "rule of
law" society (awkward phrasing I admit), power often comes from who holds
the stick. Jiski lathi uski bhains.
We don't have a federal police and we don't have separate
federal and state crimes like in the US.
If public order and the police were under the control of the
Delhi government, it could certainly and would in all likelihood misuse that
power to harass central government officials if the two governments were from
hostile political parties. The argument with respect to land is also similar, a
hostile state government could deprive the central government of land resources
in Delhi needed for the central government to function.
But given that India desperately needs so much institutional
reform including in the justice delivery and law enforcement areas, and these
reforms require careful thought and wide discussion, one issue to dwell upon
would be whether India needs a separate federal police.
This is how Article 239 (3)(a) of the Constitution is to be
read:
“(3) (a) Subject to the provisions of this Constitution,
the Legislative Assembly shall have power to make laws for
the whole or any part of the National Capital Territory
with respect to any of the matters enumerated
in the State List
or in the Concurrent List in so far as any such matter is
applicable to Union territories
except matters
with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said Entries
1, 2 and 18.”
There is no qualifier attached to the words "in the
State List".
The qualifier attached to the words "in the Concurrent
List" is "in so far as any such matter is applicable to Union
territories".
The words "except matters
with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said Entries
1, 2 and 18.” create an exception to the legislative powers of the Delhi State
government.
Therefore entries 1, 2, 18 are carved out of the power of
the Delhi Government to legislate on matters in the State List.
A further limited exception applies to the Delhi State
government's power to legislate on entries 64, 65 and 66 of the State List to
the extent that these relate to entries 1, 2 and 18.
Entries 64, 65 and 66 of the State List read as follows:
"64. Offences against laws with respect to any of the
matters in this List.
65. Jurisdiction and powers of all courts, except the
Supreme Court, with
respect to any of the matters in this List.
66. Fees in respect of any of the matters in this List, but
not including fees
taken in any court."
Pavan Bhushan's doubly-vetted opinion that the Delhi
Government cannot legislate on entry 41 of the State List is therefore wrong.
But the matter gets more complex than Pavan Bhushan's
opinion brings out.
Article 239 (3)(a) of the Constitution is followed by
Article 239 (3)(b) and Article 239 (3)(c) which provide:
"(b) Nothing in sub-clause (a) shall derogate from the
powers of Parliament under this Constitution to make
laws with respect to any matter for a Union territory or
any part thereof.
(c) If any provision of a law made by the Legislative
Assembly with respect to any matter is repugnant to any
provision of a law made by Parliament with respect to
that matter, whether passed before or after the law made
by the Legislative Assembly, or of an earlier law, other
than a law made by the Legislative Assembly, then, in
either case, the law made by Parliament, or, as the case
may be, such earlier law, shall prevail and the law made
by the Legislative Assembly shall, to the extent of the
repugnancy, be void:
Provided that if any such law made by the Legislative
Assembly has been reserved for the consideration of the
President and has received his assent, such law shall
prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall
prevent Parliament from enacting at any time any law
with respect to the same matter including a law adding
to, amending, varying or repealing the law so made by
the Legislative Assembly."
So the Union Parliament can still make laws for Delhi as a
Union territory including on all matters on the State List including Entry 41.
But in the present controversy, we are talking of the
executive powers with respect to bureaucratic appointments in the Delhi
government and not about legislative powers.
So we must read the following article
"73. (1) Subject to the provisions of this
Constitution,
the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament
has power to make laws; and
(b) to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of
India by virtue of any treaty or agreement:
Provided that the executive power referred to in subclause
(a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in
any State 1*** to matters with respect to which the
Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State
and any officer or authority of a State may,
notwithstanding anything in this article, continue to
exercise in matters with respect to which Parliament has
power to make laws for that State such executive power
or functions as the State or officer or authority thereof
could exercise immediately before the commencement of
this Constitution."
So what are the executive powers of State governments under
the Indian Constitution. The answer lies in Article 162 which reads as
follows"
"162. Subject to the provisions of this Constitution,
the
executive power of a State shall extend to the matters
with respect to which the Legislature of the State has
power to make laws:
Provided that in any matter with respect to which
the Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof."
But Delhi is not a State under the Indian Constitution. It
is only a special kind of Union territory with a quasi government. So Article
162 does not apply to Delhi.
The next step is to determine who under the Indian
Constitution is empowered to legislate and exercise executive powers for Union
Territories generally,
After that, the special provisions in the Constitution for
legislative powers and executive powers in the specialized Union Territory -
the territory of Delhi (or the National Capital Territory) must be identified.
Then comes the task of reconciling all these provisions in
accordance with applicable principles of constitutional interpretation to
finally determine whether the LG can or cannot over-ride the bureaucratic
appointments by the Delhi Chief Minister.
The general provisions for vesting of executive &
legislative powers for Union Territories in the Indian Constitution are the
following:
239. (1) Save as otherwise provided by Parliament
by law, every Union territory shall be administered by the
President acting, to such extent as he thinks fit, through
an administrator to be appointed by him with such
designation as he may specify."
and
"240. (1) The President may make regulations for the
peace, progress and good government of the Union
territory of—
(a) the Andaman and Nicobar Islands;
2[(b) Lakshadweep;]
3[(c) Dadra and Nagar Haveli;]
4[(d) Daman and Diu;]
5[(e) Puducherry;]
6***
7***:"
The Union Parliament can obviously legislate for a Union
Territory with respect to any matter including all entries in the Union, State
or Concurrent Lists.
But there are certain specialized Constitutional provisions
for the Special Union Territory of Delhi. Normally specialized provisions
prevail over general provisions if there is any conflict between the two. .
The following positions of law emerge.
Parliament can legislate on any matter for the specialized
Union Territory of Delhi, i.e., the NCT. Parliamentary legislation on Delhi
will prevail over legislation by Delhi's legislative assembly on the same
matter, unless the latter legislation has obtained presidential consent.
Delhi is administered by the President acting through the LG
under Article 239. (1) of the Constitution and the relationship between the LG
and the Delhi government is spelled out in the THE GOVERNMENT OF NATIONAL
CAPITAL TERRITORY OF DELHI ACT, 1991.
The President cannot make regulations for the peace,
progress and good government of the Union Territory of NCT of Delhi.
The specialized constitutional provision pertaining to
exercise of executive powers in the Specialized Union Territory of NCT of Delhi
is the following:
" (4) There shall be a Council of Ministers consisting
of not more than ten per cent. of the total number of
members in the Legislative Assembly, with the Chief
Minister at the head to aid and advise the Lieutenant
Governor in the exercise of his functions in relation to
matters with respect to which the Legislative Assembly
has power to make laws, except in so far as he is, by or
under any law, required to act in his discretion:
Provided that in the case of difference of opinion
between the Lieutenant Governor and his Ministers on
any matter, the Lieutenant Governor shall refer it to the
President for decision and act according to the decision
given thereon by the President and pending such decision
it shall be competent for the Lieutenant Governor in any
case where the matter, in his opinion, is so urgent that
it is necessary for him to take immediate action, to take
such action or to give such direction in the matter as he
deems necessary."
So the Delhi Govt can advise the LG on executive matters
that fall within the former's legislative competence, and the LG would normally
act in accordance with this advice, unless there is a difference of opinion,
and then the LG can refer the matter to the President and pending a
presidential decision, the LG can take urgent action if so required.
However, there are certain matters that require the LG to
act in his discretion and in these cases, the LG need not seek the advice of
the Delhi Government.
We are not in the realm of a case of failure of
constitutional machinery and the provisions of Article 239AB are not relevant
to the current issue of bureaucratic appointments.
The relevant provisions of THE GOVERNMENT OF NATIONAL
CAPITAL TERRITORY OF DELHI ACT, 1991 are the following:
CERTAIN PROVISIONS RELATING TO LIEUTENANT GOVERNOR AND
MINISTERS
41. Matters in which Lieutenant Governor to act in his
discretion:
(1) The Lieutenant Governor shall act in his discretion in a
matter: -
(i) which falls outside the purview of the powers conferred
on the Legislative Assembly but in respect of which powers or functions are
entrusted or delegated to him by the President ; or
(ii) in which he is required by or under any law to act in
his discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is
not a matter as respects with the Lieutenant Governor is by or under any law
required to act in his discretion, the decision of the Lieutenant Governor
thereon shall be final.
(3) If any questions arises as to whether any matter is or
is not a matter as respects with the Lieutenant Governor is by or under any law
required by any law to exercise any judicial or quasi-judicial functions, the
decision of the Lieutenant Governor thereon shall be final.
42. Advice by Ministers :
The question whether any, and if so what, advice was
tendered by Ministers to the Lieutenant Governor shall not be inquired into in
any court.
44. Conduct of business :
(1) The President shall make rules :
(a) for the allocation of business to the Ministers in so
far as it is business with respect to which the Lieutenant Governor is required
to act on the aid and advice of his Council of Ministers; and
(b) for the more convenient transaction of business with the
ministers, including the procedure to be adopted in the case of a difference of
opinion between the Lieutenant Governor and the Council of Ministers or a
Minister.
(2) Save as otherwise provided in this Act, all executive
action of Lieutenant Governor whether taken on the advise of his Ministers or
otherwise shall be expressed to be taken in the name of the Lieutenant
Governor.
(3) Orders and other instruments made and executed in the
name of the Lieutenant Governor shall be authenticated in such manner as may be
specified in rules to be made by the Lieutenant Governor and the validity of an
order or instrument which is so authenticated shall not be called in question
on the ground that it is not an order or instrument made or executed by the
Lieutenant Governor.
45. Duties of Chief Minister as respects the furnishing of
information to the Lieutenant Governor, etc. :
It shall be the duty of the Chief Minister –
(a) to communicate to the Lieutenant Governor all decisions
of the Council of Ministers relating to the administration of the affairs of
the Capital and proposals for legislation;
(b) to furnish such information relating to the
administration of the affairs of the Capital and proposals for legislation as
Lieutenant Governor may call for, and
(c) if the Lieutenant Governor so requires, to submit for
the consideration of the Council of Ministers any matter on which a decision
has been taken by a Minister but which has not been considered by the Council.
So the President has made rules under Section 44 of the THE
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991 which are called
the Transaction of Business of the Government of National Capital Territory of
Delhi Rules, 1993.
Note how complicated Indian law-making is.
Before getting into these rules, lets pause and see where
Delhi Government bureaucratic appointments fall within the Constitutional
scheme and the scheme of THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI
ACT, 1991.
Should these be considered executive powers where the LG has
to act in his own discretion or as executive powers where the LG must act on
the advice of the Delhi Government?
Logically bureaucratic appointments to the Delhi government
which are necessary for the Delhi Government executive to function should be
made by the LG taking into consideration the advice of the Delhi government's
Council of Ministers. This is not a matter which either under the Constitution
or as a matter of principle would fall within matters on which the LG must act
in his own discretion.
(Article 239AB provides an example of a situation where the
LG must act on his own discretion and not on the advice of the Delhi
Government.)
The GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT,
1991 has more to say on when the LG must and can act on his own discretion
without considering the advice of the Delhi Government. This is a very badly
drafted statute and I will deal with it separately.
So there is nothing in Part VIII of the Constitution that
suggests that the LG can make bureaucratic appointments without consulting the
Delhi Government.
Coming to the GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI ACT, 1991. Section 41 states that the LG "shall" act in his own
discretion in the following situations:
A the matter "falls outside the purview of the powers
conferred on the Legislative Assembly but in respect of which powers or
functions are entrusted or delegated to him by the President"
B in which he is required by or under any law to act in his
discretion or to exercise any judicial functions.
Coming to situation A, the Statute states that LG shall act
in his own discretion even on matters falling outside the legislative
competence of the Delhi Government, provided the powers or functions for such
matter should have been entrusted or delegated to the LG by the President.
This is an example of incompetent drafting which is not only
unclear in its sense but creates undesirable complications regarding the extent
of executive powers of the LG vis-a-vis not only the State Government but also
the Union Government. Note that under the Constitutional scheme, all executive
powers for Delhi outside the legislative competence of the Delhi Government are
residually retained by the President acting through the LG on the advice of the
Union Government.
What was meant perhaps was this - The Lieutenant Governor
shall act in his discretion in a matter which falls outside the purview of the
powers conferred on the Legislative Assembly but in respect of which powers or
functions, the LG is authorized by the President to act in its discretion. But
can the President authorize this by executive order? The answer would be no.
To understand this, note that normally the LG would either
act on the advice of the State Government on matters co-terminus with the
latter's legislative competence or on the advice of the Union Government
rendered through the President when acting on matters falling within the
legislative competence of Parliament. Note that the legislative powers of
Parliament with respect to Delhi cover all three lists - The Union, State and
Concurrent Lists.
The LG's power to act in his own discretion unadvised either
by the Delhi Government or by the Union Government would be extremely limited -
to instances of forming an opinion as to failure of constitutional machinery
under Article 239AB or when exercising discretion if so expressly required by
law or his acting in a judicial capacity.
Therefore Part VIII of the Constitution and The GOVERNMENT
OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991 should have expressly
differentiated between three situations: 1) where the LG acts on the advice of
the Delhi Government; 2) Where the LG acts on the directions of the President
derived from the advice of the Union Government; and 3) the limited number of
situations where the LG acts on his own discretion.
These three scenarios can be read into Article 239. (1) and
to state the law that the LG normally administers on the directions of the
President (Union Government) except on matters falling within the legislative
competence of the Delhi Government when the LG acts on the advice of the Delhi
Government and except where the LG must act in his own discretion.
Notwithstanding the bad drafting in the The GOVERNMENT OF
NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991, Delhi Government bureaucratic
appointments do not fall within the discretionary power of the LG either under
the Constitution or under the Statute. Note that Delhi Government bureaucratic
appointments would pertain only to its legislative competence and to its
executive functions co-terminus with its legislative competence.
Do the Transaction of Business of the Government of National
Capital Territory of Delhi Rules, 1993 framed under Section 44 of the
Government of National Capital Territory of Delhi Act, 1991 empower the LG to
act on his own discretion in bureaucratic appointments to the Delhi Government?
First Section 44 states that these rules apply to
"business with respect to which the Lieutenant Governor is required to act
on the aid and advice of his Council of Ministers" thereby indicating that
these rules do not deal with matters falling within the discretionary power of
the LG.
Second nothing in these rules empowers the LG to make
bureaucratic appointments in his own discretion. No doubt the LG is the
appointing authority but this is not a discretionary power or function. Instead
the LG must follow directions from the President (read the Union Government) or
follow the advice of the Delhi Government.
Note the following rules:
"46. (1) With respect to persons serving in connection
with
the administration of the National Capital Territory, the
Lieutenant
Governor shall, exercise such powers and perform such
functions as
may be entrusted to him under the provisions of the rules
and orders
regulating the conditions of service of such persons or by
any other
order of the President in consultation with the Chief
Minister, if it is
so provided under any order issued by the President under
article 239
of the Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
Commission on all matters on which the Commission is
required to be
consulted under clause(3) of article 320 of the
Constitution; and in
every such case he shall not make any order otherwise than
in
accordance with the advice of the Union Public Services
Commission
unless authorised to do so by the Central Government.
(3) All correspondence with Union Public Service
Commission and the Central Government regarding recruitment
and
conditions of service of persons serving in connection with
the
administration of National Capital Territory shall be
conducted by the
Chief Secretary or Secretary of the Department concerned
under the
direction of the Lieutenant Governor.
47. The matter in respect of which no specific provision has
been
made in these rules, the Lieutenant Governor shall consult
the Central
Government before exercising his powers or discharging his
functions
in respect of that matter."
So its Article 239AA (3) (a) Subject to the provisions of
this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any
part of the
National Capital Territory with respect to any of the
matters enumerated in the
State List or in the Concurrent List in so far as any such
matter is applicable to
Union territories except matters with respect to Entries 1,
2 and 18 of the State
List and Entries 64, 65 and 66 of that List in so far as
they relate to the said
Entries 1, 2 and 18.
For the Bhushan interpretation to hold, the words "any
of the matters enumerated in the State List or in the Concurrent List in so far
as any such matter is applicable to Union territories" should have read as
" any of the matters enumerated in the State List and in the Concurrent
List in so far as any such matter is applicable to Union territories",
i.e., an "and" instead of an "or".
Or there should have been a semi colon or at least a comma
after the words :Concurrent List".
Even logically, the State List does not have any entries
that are applicable to Union Territories.
The distinction between entries applicable to Union
Territories and not applicable to Union Territories can only be made for the
Concurrent List.
And even though I get the point the Bhushan's are making
about the words "any such matter" referring back to the words
"to any of the matters enumerated", there is some bad drafting here
but its not sufficient to support their interpretation in my view, especially
because entries in the State List cannot be separated into two categories based
upon whether or not they apply to Union Territories. That distinction can only
be made for entries in the Concurrent List and it is a necessary distinction in
the context of Article 239AA 3(a).
And the second
Bhushan argument also does not convince because the existing language of the
article works fine. The Bhushan argument would only convince if the existing
language did not work or had to be subjected to impermissble stretching.
But the biggest hurdle to the Bhushan interpretation is that
the State List does not contain any entries which apply to Union Territories
and Parliament cannot be presumed to have made an un-necessary distinction.
The Concurrent List on the other hand contains entries which
pertain to exercise of power at the federal level and exercise of power at the
State/Union Territory level. Therefore the Article needed to draw a distinction
for the Concurrent List. The article only empowers the Delhi legislature to
legislate on those entries in the Concurrent List which apply to Union
Territories.
Another way to look at this issue. Pavan Bhushan relies upon
his interpretation of Article 239AA (3) (a) to ultimately argue that the Delhi
Government cannot legislate under entry 41 of the State List i.e., with respect
to State Public Services and State Public Service Commission.
That in any case would be true even if Pavan Bhushan's
interpretation of this article is incorrect.
But how does this help on determining whether or not the LG
must act on the advice of the Delhi Council of Ministers for bureaucratic
appointments to Delhi Government posts.
It is obvious that the "unelected" LG cannot make
these appointments solely based upon his discretion.
The LG has to act in this respect either as the
representative of the President who acts on the advice of the Union Council of
Ministers or he has to act on the advice of the Delhi Council of Ministers.
In any case this is not a discretionary function for the LG.
It would only be reasonable to contend that the Delhi
Government should have a say in filling Delhi Government posts which pertain to
departments/ matters under the Delhi Government's legislative and executive
competence.
Also the power to appoint public servants by the Delhi
Government would not fall under entry 41 but under its executive powers
pertaining to all the relevant entries in the State and Concurrent Lists.
At the very least, bureaucratic appointments would be a
matter on which the LG must consult with the Delhi Council of Ministers and in
case of difference of opinion, the matter should be referred to the President.
One more point - The words "in so far as any such
matter is applicable to Union territories" in this Article are another
instance of bad drafting as they leave a lot of scope for ambiguity and dispute
irrespective of whether or not they apply to both the State and Concurrent
Lists or to the Concurrent List alone. The Constitution was not intended to be
so vague on such an important issue, but Article 239AA (3) (a) has made it
vague. Who will determine which entry does or does not apply to Union
Territories and why should this be left open for determination on a case to
case basis as this provision does?
Am wondering how Delhi High Court Judge Vipin Sanghi reached
the following conclusion:
"In my view, since the Union lacks the executive
authority to act in respect of matters dealt with in Entries 1 & 2 of List
III of the Seventh Schedule, the further executive fiat issued by the Union
Government on May 21, 2015 is also suspect,” Justice Vipin Sanghi had said in
his order ...
see at
http://www.niticentral.com/2015/05/27/kejriwals-delhidysfunction-heads-to-supreme-court-315431.html
link to Home Ministry Notification dt 21 May 2015
http://pibphoto.nic.in/documents/rlink/2015/may/p201552201.pdf
After reading the Home Ministry notification dated 21 May
2015, I find that Bhushan's arguments on Article 239AA 3(a) and on entry 41 of
the State List are not very original but have been employed in this
notification itself.
But as I stated above, even if entry 41 is not within the
legislative competence of the Delhi assembly, which it cannot be, the
requirement that the Delhi Govt be consulted on bureaucratic appointments is
not defeated. The legal requirement that the Delhi Govt be consulted on bureaucratic
appointments is not based upon entry 41 but on a broader concept that an
executive branch must have the capacity to govern through officers not hostile
to it.
Coming to the notification, in my opinion the inclusion of
Services is unconstitutional.
I also think that an argument could be made that Section 41
(1) (i)of the THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991
is unconstitutional, for reasons that I touched upon above.
In my view a Union executive notification cannot empower the
LG to act in his discretion on matters of public order, land, police and
services.
First because under Article 239AA (4), any discretion
granted to the LG must be sanctioned by Law (and not by executive order); and
second because these matters are beyond the scope of discretionary action by
the LG and such discretion could not be granted to the LG on these 4 matters
even by law as it would violate the fundamental basic structure/ scheme of
democratic and accountable government under the Indian Constitution.
I am not saying that the Delhi govt has the right to
consultation on matters of land, public order and police but I am saying that
the LG cannot exercise power on these matters in his discretion but must be
guided by the Union executive.
On bureaucratic appointments though, The LG must consult
with the Delhi Government.
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