#India-WHIPLASH: Capital punishment as a joke #deathpenalty


PUBLISHED: 21:41 GMT, 25 October 2012 | , MailonlineIndia

    • The home ministry’s decision to recommend to the President that Mumbai attacker Kasab‘s mercy petition be rejected will fool a few into believing that the mass killer will be executed soon.

But, as our poor death row record shows, they are going to be disappointed. In fact, those who bat against the noose on moral grounds don’t need to take recourse to such principles. As far as India is concerned, there is a much more convincing reason why it ought to be abolished: This is a provision of law that is almost always observed in the breach.

The death sentence may be handed out in the rarest of rare cases, but even then our law enforcers have regularly failed to go the final mile. You only need to look at statistics. The last death sentence was carried out in Alipore jail in Kolkata way back in 2004 when Dhananjoy Chatterjee was hanged to death for raping and killing a 14 year old girl.

Will Mohammed Qasab be the first person to receive the death penalty since 2004? Will Mohammed Qasab be the first person to receive the death penalty since 2004?

These delays are not difficult to explain. For, after the Supreme Court awards the death penalty, begins a complex procedure for seeking the President’s clemency. And this is the point where the provisions turn ambiguous – and open to crass politics.

What else can explain the Tamil Nadu assembly passing a unanimous resolution last year urging the President to review his stand after the mercy petition of Rajiv Gandhi’s killers was dismissed?

A similar attempt was made in the Jammu and Kashmir assembly to get the case of parliament attack convict Afzal Guru reconsidered. This makes it almost certain that Kasab’s death sentence will also be put on hold.

Incidentally, the Mumbai attacker has become the 309th convict to be placed on death row. This track record suggests that it would make sense to do away with the death penalty altogether, if only to spare the law a good deal of embarrassment.

Kasab’s lawyers donate fees to 26/11 victims’ kin


TNN Oct 4, 2012, 02.53AM IST
(Lawyers Raju Ramachandran…)

NEW DELHI: If Mumbai police personnel showed exemplary courage in fighting the 26/11 terrorists with outdated weapons and even lathis, lawyers Raju Ramachandran and Gaurav Agrawal displayed “high professional ethics” by donating Rs 14.5 lakh, due to them for defending the lone surviving Pakistani gunman Ajmal Kasab, to families of security personnel who died in the attacks.

When Kasab moved the apex court challenging his conviction and death penalty for 26/11, he had no one to defend him. The court appointed Ramachandran and Agrawal as amicus curiae to protect the principle of natural justice by making provision for Kasab’s defence.

Both the advocates, a bench of Justices Aftab Alam and C K Prasad noted, did their best in researching case law and preparing Kasab’s elaborate defence, which focused on his young age, his not being the mastermind of the carnage and his not being responsible for the murders at landmark hotels. The court rejected the arguments and upheld death penalty to Kasab.

On Wednesday, the bench appreciated the “high professional ethics” displayed by the two lawyers in moving an application seeking to donate their fees — Rs 11 lakh for Ramachandran and Rs 3.5 lakh for Agrawal — to the Supreme Court Legal Aid Services Authority. The bench decided to put the donation to a fitting use by asking the Maharashtra government to proportionately distribute the amount among families of 18 Mumbai policemen and securitymen who died in the attacks.


Death Penalty- is discriminatory


ajmal-amir-kasab-photo-terrorist-going-to-be-hanged-image-india-attacked.jpg copy (Photo credit: Shekhar_Sahu)

Death is entirely discriminatory Anup Surendranath , Oped  The Hindu

A life term for Kodnani and the hangman’s noose for Kasab show the arbitrariness in the judicial administration of capital punishment

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

Different responses

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicus in Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else.

As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another. The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary.

Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration.

An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not. In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust.

The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused. Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar without much success.

A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts. It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘Tinkering with the machinery’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court.

Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile.

Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

Kasab, Bajrangi and the case against the #deathpenalty


We should put Ajmal KasabImages ] in jail until he dies a natural death, just like Babu Bajrangi. Rotting in jail knowing you are never going to be a free man again is worse than the finality of death. The punishment for crimes against humanity should be in this world and not the next, says Shivam Vij.at rediff.com
The Naroda Patiya massacre in Ahmedabad [ Images ] on February 28, 2002, killed 97 Muslims. It is the massacre infamous for the gory stories of a pregnant woman disembowelled and raped, an infant killed, and so on. If this massacre is not fit to be considered the “rarest of the rare,” what is?

It is ironical that the court found the kingpin of the massacre to be a woman, Dr Maya Kodnani, a practising gynaecologist, a former minister of state for women and child welfare in the Narendra ModiImages ] government! The court came down particularly hard on her, commenting that as a legislator, a representative of the people, she had done the opposite of what she was expected to: she helped kill people rather than save them. “She led the mob and incited them to violence. She abetted and supported the violent mob,” the court observed.

However, special court judge Jyotsna Yagnik chose not to sentence the accused to death when he announced the sentencing on September 1. Her court found 32 people guilty, of whom one is absconding. Seven will spend 31 years in jail, 22 will spend 24 years, Maya Kodnani 28 years and former Gujarat state Bajrang Dal president Babu Bajrangi is to live the rest of his life in jail.

Justice Yagnik — a brave judge whom the Gujarat government had transferred but was reinstated by the Supreme Court — said that capital punishment was against human dignity and that global trends were to avoid it.

As someone against death penalty, I am only too happy that a judge has given a judgment like this. And I am happy that she has compensated this with extra years in jail — and in Bajrangi’s case, jail till natural death. I think that capital punishment should be abolished from Indian law, as the State has no right to take away anyone’s life.

Killing a mass murderer is not going to bring back those he killed, and I do not understand how the cause of justice is served. The idea of justice is not revenge but to bring a sense of closure to the victims, not give them the gross feeling of revenge. Justice should be restorative, not retributive.

Making the legal process less cumbersome and time-consuming, making it more independent from the pressures of the government of the day, punishing the police and investigation agencies found coming in the way of justice, are some measures that are going to be far more effective in preventing heinous crime than hanging people to death.

Sometimes capital punishment is actually counter-productive. It has the potential of turning the accused into a martyr, which is then used by his or her defenders to spread his or her message. Hanging Bajrangi is going to be used by some fanatics to make him into a hero in the cause of fanaticism and religious violence. Letting him rot in jail forever, is justice that will deny him a heroic halo.

Justice is about fairness, not about lynch mob mentality. And so when the Supreme Court upheld capital punishment for Ajmal Kasab, I was sickened to see the reactions by some in social media. ‘Hang him now!’ they said. ‘Why are we wasting the tax-payer’s money keeping him alive?’ they asked.

They are not asking for justice but for the ghastly pleasure of seeing someone they hate being killed by their State. It is the same kind of vicarious pleasure that the 26/11 terrorists and the people behind them sought. So are we going to submit to the kind of base instincts that made Kasab a terrorist? Unlike the nine others who were killed, Kasab was captured alive. But he, too, was prepared to be killed. Like all jihadis, he was probably told he will attain heaven. Kasab’s hanging is not going to deter other jihadis who are indoctrinated to die for a cause.

And that is why we should put Kasab in jail until he dies a natural death, just like Bajrangi. Rotting in jail knowing you are never going to be a free man again is worse than the finality of death. The punishment for crimes against humanity should be in this world and not the next. And if we assert that these criminals have committed acts that are inhuman, our moral right to justice cannot be fulfilled if our justice is the inhumanity of murder.

The only thing that will not be achieved by their hanging is that we will not get to clap and cheer as the noose tightens, which is what some of us really want to do. Like barbarians, like the Taliban [ Images ]. It is unfortunate that in the Afzal Guru case the Supreme Court almost succumbed to such emotions of retributive justice when it noted that sentencing him to death would satisfy “the collective conscience of the [sic] society”.

If the tax-payer’s money is to be saved, let’s abandon the criminal justice system as a whole and keep hanging people summarily. Incidentally, the people who want Kasab hanged right away, do not want Bajrangi and Kodnani hanged. I don’t understand this double standard and hypocrisy. Both killed people, lots of them. In fact Kasab’s crime is lesser: he was not a mastermind like Kodnani and Bajrangi but a pawn.

An MLA conspiring to kill the people she represents is definitely “rarer” than a Pakistani terrorist coming to India [ Images ] and killing Indians.

I am not saying that Kodnani and Bajrangi should be hanged, rather that nobody should ever be hanged, for anything. The hypocrisy in a section of public opinion is proof that capital punishment is less about justice and more about retribution. But there are more reasons why India should abolish capital punishment.

Those given capital punishment in India often come from poor, marginalised or minority communities. This makes people say that the rich, the mainstream and those from majority community are treated with leniency. While I appreciate and second Justice Yagnik’s argument that death sentence is against human dignity, I am only saying that the Indian criminal justice system should apply this logic as a whole, in all cases deemed “rarest of the rare”.

The criminal justice system as a whole should not only treat everyone equally but also be seen as treating everyone equally. The Naroda Patiya judgment will certainly seem unjust to the 11 who have been given death sentence for the Godhra train carnage.

When the perpetrators of the gruesome Khairlanji massacre, in which a Dalit family was lynched to death by a whole village in Maharashtra [ Images ] in 2006, were not given death sentence, it made people ask: why does the system become lenient with punishment when the victims are Dalit? Such alienation and politics over capital punishment can be avoided only if it capital punishment is abolished from the statute book.

Another good reason why capital punishment should be abolished is that in case a judgment is erroneous, in case someone is being convicted on the basis of, say, concocted evidence, the mistake cannot be reversed. A man in jail can be freed but a man murdered can’t be brought back to life. The mistake can also be one of the judges’ interpretation of what constitutes “rarest of the rare”. And given the number of riots and pogroms and terrorist activities we have in this country, is the “rarest of the rare” really all that rare?

Fourteen eminent retired judges have recently written to President Pranab Mukherjee [ Images ] asking him to commute the death sentences of 13 convicts because the Supreme Court recently admitted that seven of its judgments giving those 13 capital punishment were made in error or ignorance (rendered per incuriam)! The Supreme Court has also admitted error in giving death sentence to Ravji Rao and Surja Ram of Rajasthan [ Images ], who were hanged in 1996 and 1997. Could there be greater injustice in the name of justice?



No one should be executed. Not even #AjmalKasab #deathpenalty


source-Amnesty Blog

I was woken up yesterday morning by my phone beeping. A text message from Shashikumar, Amnesty India’s programme director: “Supreme Court likely to confirm Ajmal Kasab’s death sentence today”. No surprises there. The death penalty is on the statute books and there was little doubt that the Supreme Court would decide to apply it in this case.

At one level it put me in touch with my deeply held conviction (that I share with Amnesty International) “The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. It violates the right to life as proclaimed in the Universal Declaration of Human Rights.”

For more information, please see Amnesty International’s Position paper on the death penalty

But it also brought up for me the horrors of the 26/11 atrocity and with it an anxiety. I remembered the many conversations with friends where “But if we don’t have the death penalty how will we deal with Kasab?” was considered the ultimate argument in favour of the death penalty. Can I find a way of staying with my conviction and articulating it without in any way diminishing the anguish and outrage that the atrocity rightfully evokes? Without somewhere in my heart finding reasons to explain the actions and motivations of Kasab, his murderous band of terrorists and their masters in Pakistan?

Arriving at work, I took heart in the fact that the Times of India chose yesterday (of all days!) to carry aninterview with the retired chief justice of the Delhi High court Justice AP Shah. “Public opinion in India can no longer ignore the global movement in favour of abolition of the death penalty.” He went on to say, “It’s time we accepted that capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure. The criterion of rarest of rare cases hasn’t resulted in any satisfactory solution. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.”

As human beings, we may sometimes harbour beliefs that are not backed by evidence or fact. But even in the eyes of those who believe that the death penalty does serve as a deterrent, it would be hard to imagine Kasab and his companions – hard core terrorists brainwashed into hatred and trained in mass murder – being deterred by the thought that they would be executed if caught.

The debate on the death penalty in India is an old one. I was surprised to find that, although they articulated their position in different ways, both Gandhi and Ambedkar opposed it on principles that applied to all cases without exception, regardless of the nature of the crime or the characteristics of the offender.

Gandhi: “I cannot in all conscience agree to anyone being sent to the gallows…God alone can take life because he alone gives it.”

Ambedkar: “This country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

So why do we still have the death penalty? Apart from the (false) claims of its deterrent effect, perhaps it is the notion that without the death penalty, we as a nation will not be able to respond to monstrous crimes and crimes against the nation. It is clearly the “enormity of the crime”, to quote the Supreme Court, that staggers the mind and sends it in the pursuit of a “fitting response”, and nothing short of the ultimate seems to be appropriate. To many of our fellow citizens, to even suggest anything less than the death penalty for Kasab seems to somehow diminish the horror and take away from the enormity of his crimes.
But what can a decent human being (or indeed a society, a nation) do in response to such horror that would not be an affront to her own decency? That would not turn our very human desire for revenge into the mirror image of a terrorist’s willingness to kill? That would not let our response be driven by our fear of being seen as irresolute?

If we hang Kasab we will not deter future terrorists. If we hang Kasab we will not prevent future acts of terrorism. If we hang Kasab we will not give a fitting response to an enormous crime. If we hang Kasab, we will merely apply a provision in our law books that ought not to be there in the first place.
Imprison Kasab for the full duration of his life. Abolish the death penalty.

India court upholds Mumbai attacker Qasab death penalty




Mohammad Ajmal Amir Qasab in the middle of the attacks
Qasab was found guilty of mass murder


India’s Supreme Court has upheld the death sentence of Pakistani national Mohammad Ajmal Amir Qasab, the sole surviving gunman of the 2008 attacks on Mumbai.

The judges also rejected his claim that he had been denied a fair trial.

A trial court convicted Qasab, 24, of murder and other crimes in May 2010. His first appeal was rejected by the Mumbai High Court in February 2011.

The Mumbai attacks claimed 165 lives. Nine gunmen were also killed.

“In view of the nature of the gravity of his crime and the fact that he participated in waging war against the country, we have no option but to uphold his death penalty,” Supreme Court Justices Aftab Alam and CK Prasad ruled on Wednesday morning.

Prosecutor Gopal Subramaniam hailed the verdict as “a complete victory of the due processes of law”.

“It was a case argued in a completely professional and dispassionate manner,” Mr Subramaniam said.

Qasab can now make a plea for clemency to the president.

The trial court in Mumbai had found Qasab guilty on 3 May 2010 of murder, terrorist acts and waging war on India and sentenced him to death.

The 60-hour siege of Mumbai began on 26 November 2008, targeting luxury hotels, the main railway station and a Jewish cultural centre.

Qasab and an accomplice carried out the assault on the station, killing 52 people.

India blamed Pakistan-based militant group Lashkar-e-Taiba for the attacks.

After initial denials, Pakistan acknowledged that the assault had been partially planned on its territory and that Qasab was a Pakistani citizen.

Kasab’s Appeal Adjourned, Could Roll On

English: The Taj Mahal Palace in Mumbai, India.

Image via Wikipedia

The Supreme Court Tuesday adjourned Ajmal Kasab’s appeal hearing against a death sentence for his part in the 2008 Mumbai killings.

Mr. Kasab, a Pakistani militant, was caught on closed-circuit video opening fire and throwing grenades inside Mumbai’s Chhatrapati Shivaji railway station, part of a three-day killing spree in India’s financial capital that led to the deaths of more than 160 people.

He was later apprehended near Chowpatty Beach, the sole member of the 10 Pakistani attackers not to die in a shootout with security forces. After initially pleading not guilty, Mr. Kasab later changed his plea to guilty, and a Mumbai court in 2010 sentenced him to death by hanging.

Court cases involving capital punishment in India can roll on for a long time through the appeals process.

Take the case of three men sentenced to death for their part in the 1991 murder of former Indian Prime Minister Rajiv Gandhi. A court sentenced them to death in 1998, the Supreme Court turned down their appeal in 2000, and last year Indian President Pratibha Patil also refused to overturn the verdict.

But that wasn’t the end of it, although the men appeared to have exhausted all legal avenues. The three men filed a petition to the Madras High Court, which ruled in August to stay the executions, citing procedural delays.

The Supreme Court did not say when it would again take up Mr. Kasab’s appeal, which could take months, or even years, to complete. Mumbai’s High Court threw out his appeal last year, pushing the case up to the Supreme Court. If he loses this stage, he can petition the Supreme Court to review its decision. After that, he can appeal to the president for clemency.

Given the evidence against him from the station’s video footage, and the outrage caused by the attack, it’s unlikely Mr. Kasab’s appeal will succeed, said Amita Singh, professor at the Center for the Study of Law and Governance at New Delhi’s Jawaharlal Nehru University.

“Kasab committed a serious crime and there is no doubt he will be hanged. There is clear and direct evidence of his involvement. But how soon this will happen still remains unclear,” Ms. Singh said.

Mr. Kasab is in solitary confinement at Arthur Road jail in Mumbai. According to this report by Firstpost, an Indian news service, he’s showing signs of mental disturbance. One recent visitor to the prison, Firstpost reported, saw Mr. Kasab on closed-circuit TV “swinging his head around, like a headbanger in a rock concert.”

Pakistan has acknowledged the gunmen came from Pakistan, where they planned the attacks. But the country has failed to convict the seven militants it has charged in connection with the attack. They include Zaki-ur-Rehman Lakhvi, a senior commander of Lashkar-e-Taiba, the Pakistani militant group blamed by India for the attack.

Pakistani prosecutors argue they need access to Mr. Kasab to complete their cases. Indian officials say they have provided ample evidence to Pakistan to proceed with the cases and have shown public anger over the delays.

A Pakistan judicial commission is expected to travel to Mumbai next month to take depositions from Indian judicial officials that interrogated Mr. Kasab. But India, which believes Pakistan’s state was involved in some way in the attacks, won’t allow them to see Mr. Kasab.

“The Pakistan government has already settled to the Indian position since they are coming despite the Indian government’s denial to allow them access to Kasab,” Ms. Singh said.

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