A political move of great constitutional significance recently saw the light of day after years of deliberations and discussions. Article 370, which was until recently, a component of Part XXI of the Constitution of India, stands de facto removed. Apart from taking public discourse and the media by storm, this move also predictably saw a slew of petitions being filed in the Hon’ble Supreme Court of India. These petitions broadly encompass three kinds of challenges – challenges to the constitutional validity of the method adopted to abrogate Art 370, recasting the State of Jammu and Kashmir (J&K) into two Union Territories of Jammu & Kashmir and Ladakh and lastly, habeas corpus petitions challenging the detentions of certain persons as well as temporary restrictions on communications imposed in the region. The discussion in this article will be restricted only to the first two challenges as the third would require a very different analysis.
This article will proceed to expound the issue in five parts:
Part I/Part II -will provide a historical perspective of the manner in which the provision of Art. 370 came to be inducted in the Indian Constitution as the same has wide ramifications on its intent, its content and the intended method, or lack thereof, of its removal.
Part II will discuss the addition of Article 35A, a provision that was not formally a part of the Indian Constitution, but which was introduced using the powers provided in, and under the protective umbrella of Article 370, and is therefore of great significance to this discussion.
Part III will examine the impact that the above-mentioned provisions i.e. Article 370 and Article 35A, had on the human rights and fundamental rights of people in the region and the effect on the special status carved out for the State of Jammu and Kashmir, as it then was.
Part IV will analyse the dilution of the provision of Art 370 over the years and detail the challenges already decided upon by the Supreme Court while dealing with the same.
Part V will explain the various recent steps taken by the Indian Parliament to decommission Article 370 and why the author considers the move to be constitutionally valid. This Part will also discuss how the said steps are in complete consonance with the various decisions rendered by the Hon’ble Supreme Court of India regarding this issue.
PART I : HISTORY OF THE VALLEY
The status of the princely state of J&K as well as the integrity of the Indian union was far from resolved when India won freedom from British colonialism on 15th August 1947. Soon, the Pakistani army and tribals from the North West Frontier Province raged an attack on the State of Jammu and Kashmir, the then ruler Maharaja Hari Singh appealed to India for help on 24 October 1947. The Maharaja signed the Instrument of Accession on 26th October 1947 stating that Kashmir would accede to India, and Indian troops moved in.
Nehru, on the advice of Lord Mountbatten, unilaterally decided to take the J&K issue to the United Nations on 1st January 1948 stating that since the aid received by the invaders was from the Government of Pakistan, the attack was clearly an act of aggression which entitled India to send her troops across the border in retaliation to such attack. This blunder of Prime Minister Nehru complicated matters further because he was in essence, asking the United Nations for permission to defend the borders of our country, a strategically incongruent move.
N. Gopalaswamy Ayyangar, a former Prime Minister of J&K and a Member of the Constituent Assembly of India was made in charge of drafting the portion dealing with J&K. The original draft of the text dealing with the portion relating to J&K, that was agreed upon by Jawaharlal Nehru, Sardar Patel, Dr. Ambedkar, the Maharaja, Sheikh Abdullah and three of his colleagues and of course Mr. Ayyengar, was numbered as Article 306A. This text of Article 306A gave the President the power to do away with the operation of the provision in J&K, without obtaining the consensus of or even consulting the government of J&K. This provision also made substantial parts of the Indian Constitution applicable to J&K but gave Parliament limited powers to legislate for the State.
This text was also finally approved by the Constituent Assembly. Sheikh Abdullah however later retraced his steps and raised objections to the agreed provision of Article 306A and demanded that the provisions of the Indian Constitution applicable to other States should not be applied to J&K.
The Constitution Draft which had been unanimously approved by the Constituent Assembly, was thus reopened by Ayyengar and Nehru and redrafted in order to pacify Sheikh Abdullah and give in to his whims and fancies. In the Constituent Assembly, the debate lasted less than ten minutes. Leaders of the Government abstained from the debate and N. Gopalaswamy Ayyangar tabled the provision with a solemn promise that this is a temporary arrangement. Only one other member spoke on the subject. This minority community member did not oppose Article 370. He demanded that it also be made applicable to the region from which he came.
This undemocratic exercise thus gave birth to Article 370.
Article 370 as it now stood, essentially stated the following:
Firstly, that the Indian Parliament’s power to legislate would be limited to the subjects enumerated in the Instrument of Accession and no other without the “concurrence” (i.e., consent) of the “Government” of J&K. To legislate on topics covered by the Instrument of Accession, Parliament would only have to “consult” the “Government”, but if it wanted to go beyond those subjects, it required the “concurrence” of the “Government”. The “Government” of J&K was the Maharaja acting on the advice of the Council of Ministers “for the time being in office” under the Maharaja’s proclamation of March 1948.
Secondly, except for Article 1 and Article 370, no other part of the Indian Constitution applied to J&K. If India’s President wanted to make other parts of the Constitution applicable to J&K, he would require the “concurrence” of the “Government” of J&K.
Thirdly, under Article 370(3), the text of Article 370 itself could only be amended or repealed by the President with the consent of the Constituent Assembly of J&K.
PART II : THE ADDITION OF ARTICLE 35A AND THE CONSTITUTION OF JAMMU AND KASHMIR
A second significant step in the history of the Valley post the induction of Article 370 was the Constitution (Application to Jammu and Kashmir) Order, 1954, commonly known as the Presidential Order of 1954, introduced by President Rajendra Prasad exercising his powers under Article 370(1)(d), on the advice of Prime Minister Jawaharlal Nehru’s Cabinet. This Order introduced, among other changes, a new Article numbered as Article 35A.
The newly created Article 35A, which was never formally a part of the Constitution but was added in Appendix I to the main text of Constitution, introduced the concept of “Permanent resident status” and identified certain benefits that would be granted to such persons, who would be recognized by the State Legislature. This power of the State Legislature to define who would qualify as a ‘permanent resident’ of the State and would therefore be privy to the attractive set of rights to be solely granted to such persons, was a huge step in emboldening the State’s autonomous status, eight years after Jammu and Kashmir had acceded to India on October 26, 1947. This step was a glaring departure from the principle of equality that had just been incorporated in the Constitution of India as a highly cherished principle. Given the importance of this provision, it is interesting to note that this Order was not even approved by the Parliament or State Assembly in defiance of Article 368 which lays down the procedure for amending the Constitution.
Maharaja Hari Singh had initially brought in a similar law as an economic protectionist measure for the subjects of the Princely State of Jammu and Kashmir, against the inflow of people from the neighbouring areas of Punjab which were under British colonial control.
A Constituent Assembly was convened for the State of Jammu and Kashmir on the basis of universal adult suffrage clearly reflecting the mandate of the people. This body ratified Jammu and Kashmir's accession to India through a well-considered resolution on 15 February 1954 after a great deal of debate and consideration.
The Jammu and Kashmir Constitution came into force in its entirety on 26 January 1957. The Preamble to the Constitution categorically acknowledged that its purpose was only to define the existing relationship of the State with the Union of India. Further, Section 3 of the J&K Constitution declared J&K to be an integral part of India. Moreover, the people of state were referred to as “permanent residents” not “citizens”. This Constitution however retained the Dogra autocracy’s law prohibiting non-permanent residents from ‘permanent settlement’ in the state, acquiring immovable property, getting government jobs, scholarships and aid. The law even barred refugees from then-West Pakistan living in J&K since Partition from acquiring state subject rights.
PART III : IMPACT OF ARTICLES 370 AND 35A – IMPLICATIONS OF THE GRANT OF SPECIAL STATUS
With the addition of Articles 370 and 35A, began an era of cruel realities for the minorities in Jammu and Kashmir. The introduction of these special provisions encouraged the secessionist tendencies of Islamist separatists and emboldened their violent activities to an extent that a systematic purge of members belonging to the Kashmiri Pandit community began. Around the years 1989-1990, Islamic insurgency propelled by JKLF and other separatist groups grew to such immense proportions that the Hindus of the Valley were forced to flee.
Of the roughly 300,000 to 600,000 Hindus living in the Kashmir Valley in 1989-1990, only about 2,000–3,000 remained there as of 2016. Initially hopeful of one day being able to return to their homes in the Valley once the violence subsided - the Kashmiri Pandit community eventually gave up on such hope, organised themselves and filed a public interest litigation (PIL) before the Hon’ble Supreme Court of India. The petition filed by an organisation called ‘Roots in Kashmir’ prayed for a probe into the killing of nearly 200 Kashmiri Pandits in J&K in 1989 which ultimately forced around half a million members of the community to flee from the Valley. The plea was dismissed by the Hon’ble Court citing a delay of almost 27 years in approaching the Hon’ble Court. A review petition was filed against the order of dismissal, also stood dismissed by the Court.
Apart from the community of Kashmiri Pandits another group that was severely affected by the special provisions were women. The ‘permanent resident’ law was blatantly discriminatory as it disqualified women from state subject rights on marrying anybody who was not a subject of J&K. This bar however did not apply to men. A Full Bench of the Jammu and Kashmir High Court held in 2002, that there was no provision in the existing law dealing with the status of a female permanent resident who married a non-permanent resident. The judgment however clarified that the State Legislature had the powers under Section 8 of the J&K Constitution to enact such a law. The State of J&K initially preferred an SLP against this decision of the High Court, but later withdrew it and instead introduced a Bill known as ‘The J&K Permanent Residents (Disqualification) Bill, 2004’. 
This Bill, which sought to disqualify women who married men outside the State, from being permanent residents, was passed by the State Legislative Assembly within a record six minutes. The Bill however lapsed while pending consideration in the Legislative Council. A batch of petitions came to be filed before the Hon’ble Supreme Court of India alleging discrimination against women prevalent in the State of Jammu and Kashmir. Dr. Charu Wali Khanna’s petition was one among several that came to be admitted by the Hon’ble Court in 2019 and is still pending consideration.
Another group of people who have suffered the consequences of Article 35A are members of the SC/ST community. After Partition several Hindus & Sikh families, many from SC/ST groups, entered Jammu from West Pakistan. These families who were initially given 'refugee' status, became eligible to vote for Central elections but still couldn’t vote for State elections as they were not State subjects under article 35(A) in the J&K constitution. This lot of people have been deprived of the right to participate in the political process, as also any access to government benefits relating to education, jobs etc for decades. It is pertinent to mention that the Constitution of J&K had no provision for minority rights or human rights for that matter.
PART IV: DILUTION OF ARTICLE 370 AND DECISIONS OF THE SUPREME COURT
The impact of Article 370 has been watered down over the years making a number of provisions of the Indian Constitution applicable to the State. Plenty of orders have also been issued by the President to increase Parliament’s legislative control over J&K. In fact Prime Minister Nehru in a Lok Sabha speech of 1963 said that Article 370 had been “eroded” and Kashmir stood “fully integrated”.
The first amongst the significant Presidential Orders pertaining to the State, was the Presidential Order of 1954 which obtained the concurrence of the elected State Government as well as the Constituent Assembly. The Order, in 22 parts, made numerous Articles of the Indian Constitution applicable to the State of Jammu and Kashmir with exceptions and modifications. The Order also introduced the controversial provision, Article 35A.
A Presidential Order was issued in July 1986, making Article 249 of the Indian Constitution applicable to the State. Article 249 gives Parliament the right to legislate in the national interest, on matters contained in the State list, if the Rajya Sabha passes a resolution by a two-thirds majority of its members empowering it to do so. Since the State was under President’s rule during the period, the order received only the “concurrence” of the Governor of the State. This Order was challenged before the J&K High Court but never came up for hearing.
Over a period of time, 94 of 97 entries in the Union List, 26 out of 47 items of the Concurrent List, and 260 of 395 Articles had been extended to the State besides 7 of 12 Schedules. Many of these changes brought with them certain consequences that found their way before the Hon’ble Supreme Court in the form of various challenges. The Supreme Court on several of these occasions, has laid down judgments that are relevant to the current issue at hand.
One of the first issues that the Hon’ble Supreme Court had the occasion to decide in this context concerned the powers of the President under Article 370. In PL Lakhanpal v. State of J&K the petitioner was aggrieved by his arrest without explanation under a preventive detention statute made possible due to Article 35(c) inserted by the President into the Indian Constitution only as far as it applied to J&K. The statute could not be challenged on the grounds that it violated a fundamental right under the Indian Constitution. The Supreme Court upheld the power of the President under Article 370 to insert such a provision into the Constitution.
In Puranlal Lakhanpal v. President of India, the petitioner challenged a provision of the 1954 Presidential order which modified Article 81 of the Indian Constitution in its application to J&K to read that representatives of J&K would be nominated to the Lok Sabha on the basis of indirect elections, by a recommendation made by the Legislature of J&K. Article 81 provides that members of the Lok Sabha are to be directly elected by the people of India. The petitioner argued before the Supreme Court that the President’s power to apply the Indian Constitution to J&K did not give him the power to radically transform the Constitution. Rejecting this argument, the Supreme Court held that Article 370 was to be given the “widest possible amplitude”. Under it, the President could “efface” a provision and could also amend it radically.
In another case the Presidential Orders of 1959 and 1964 were argued to be unconstitutional as Article 370 ceased to operate once the Constituent Assembly of J&K was dissolved. This argument was rejected as Article 370 did not cease to operate after the Constituent Assembly of J&K had framed the State’s Constitution. Au contraire Article 370 clearly stated that it would only cease to operate by way of a Presidential order on the recommendation of the Constituent Assembly of J&K. The Court held that since the Constituent Assembly of J&K had not expressly put an end to Article 370, it would be considered to be operative even after the Constitution of J&K came into force and the Constituent Assembly was dissolved.
On 24 November 1965, a Presidential Order was issued under Article 370 of the Constitution which amended Article 367, seeking to change the meaning of ‘Sadar-i-Riyasat’ in the Explanation to Article 370, to “Governor”. Article 370(3) required the (already dissolved) Constituent Assembly of J&K to recommend any modification of Article 370. The Petitioner argued that the Order was unconstitutional since it was issued without the recommendation of the Constituent Assembly of J&K, and that it sought to achieve indirectly, by an amendment of Article 367, what couldn’t be done directly by an amendment of the Explanation to Article 370 without the recommendation of the Constituent Assembly of J&K.
A Constitution bench of the Supreme Court considered whether the Governor of Jammu and Kashmir is a competent substitute for the ‘Sadr-i-Riyasat’. In this judgment, the Court discusses and elaborates upon the powers of the Governor of J&K and holds that the Governor is competent to give the concurrence stipulated in Article 370 and perform other functions. It must be noted that the current legislative exercise undertaken by the Government is exactly the same as the one which had been upheld by the Hon’ble Court in this case.
As recently as in 2017, the Hon’ble Court reiterated that the State of J&K had “no vestige of sovereignty outside the Constitution of India” and that the J&K Constitution was “subordinate to the Constitution of India”. A reading of these judgments makes it amply clear that the highest court has held that the power of the President under Article 370 would outlive the Constituent Assembly.
PART V: THE ACTIONS OF AUGUST 5, 2019 AND THEIR VALIDITY
In June 2018 when the Mehbooba Mufti government in J&K was reduced to a minority due to the withdrawal of support by the members of the Bharatiya Janata Party, the State suddenly saw itself in the throes of a political crisis. The State Assembly was thus kept in suspended animation and Governor’s rule was imposed on 20 July 2018. Section 92 of the J&K Constitution limits the continuance of Governor’s rule to a period of six months. Post the expiry of that period, the Governor recommended imposition of President’s rule in the State given the atmosphere of unrest.
Article 356 of the Constitution of India, which is the relevant provision for imposition of Emergency in a State had been made applicable to J&K by way of the Presidential Order of 1954. Utilising this power, the President of India issued a proclamation on 19 December 2018 assuming to himself all the functions of the Government of the State and declared that the powers of the State Legislature would thereafter be exercisable by or under the authority of Parliament.  It also stated that any reference in the Constitution to the Governor or Legislature of J&K would hereinafter mean a reference to the President and Parliament respectively. It also suspended the proviso to Article 3 of the Constitution, which requires the President to refer a Bill to reorganize a State to the concerned State Legislature if it affects the area, boundaries or name of the State.
With this arrangement in place, the Union Government introduced three changes that completed the integration of the State of J&K within the constitutional framework of India, as had been originally envisaged by the framers of the Constitution:
While these moves were welcomed by a large number of political analysts, some critics have asserted that the said moves are unconstitutional. The primary argument advanced is that the Presidential Order, which added a Clause to Article 367 to alter the definition of “Constituent Assembly of the State” in Article 370(3), using the power to do so under Article 370(1)(d), so that the “recommendation” of the Constituent Assembly as previously required under Article 370(3) would not be required henceforth, is unconstitutional since Article 370 had been modified without the recommendation of the Constituent Assembly of the State as had been originally envisaged, thus violating the spirit of the provision. The phrase “Constituent Assembly” has been substituted with the phrase “Legislative Assembly”.
Article 370 was framed in a manner such that sub-article (3) used the words “cease to be operative”. The usage of these words clearly conveys that the framers contemplated a situation where, without amending the Constitution, Article 370 would be decommissioned. The Constituent Assembly of J&K was permanently dissolved on 26 January 1957. To argue that sans the Constituent Assembly, Article 370 could never be withdrawn, would imply one of three things:
i) Without the Constituent Assembly Art. 370 itself became defunct
ii) Without the Constituent Assembly, the proviso to Art. 370(3) became defunct
iii) In the absence of the Constituent Assembly, the proviso must be read to construe that it has a successor
It is illogical to say that the framers of the provision, envisaged a situation where, without the Constituent Assembly, the proviso renders the whole provision defunct, hence the only possible construction is the third option. Besides, this argument is legally untenable since an amendment of this exact nature had previously been effected by the Government and the constitutional validity of the same was upheld by the Hon’ble Supreme Court of India in the Damnoo case, where the phrase “Sadr-e-Riyasat” was substituted by the word “Governor” by amending Article 367 using the power available under Article 370(1)(d), as has been discussed above already. This establishes the existence of power to effect an amendment of the nature brought in by the Government.
Another argument that is being vociferously advanced by the critics of the move is that the consent of the people of the State was not taken while introducing a change of this magnitude through a plebiscite or otherwise. It is being argued that the Presidential declaration relying upon a Resolution passed by both Houses of Parliament and not that of the State Legislature again violates the spirit of Art. 370. In 1956, the Constituent Assembly of J&K, which had been established on the basis of universal adult franchise, enacted a Constitution which said that the State would be an integral part of India. The will of the people of Jammu and Kashmir has been ascertained through the duly elected Constituent Assembly. Section 3 of the Constitution of Jammu and Kashmir states that "The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
The State's accession to India therefore cannot any longer be questioned or doubted and the question of a plebiscite does not arise. As far as the argument relating to exercise of power by Parliament in place of the State Assembly is concerned, the same cannot be entertained as it is an argument based on political realities rather than legal soundness. During the operation of President’s rule in a State, the constitutional framework mandates that Parliament play this role in any State, not just in J&K. What is actually being questioned here thus, is the wisdom of Parliament in effecting such a change, and not its power. The Hon’ble Supreme Court has held multiple times that the Courts are concerned only with the power to enact statutes and not the wisdom. Parliamentary convention mandates that an Assembly speak either through laws or through Resolutions.
Yet another issue being put forth is that during operation of President’s rule, the State could not have been bifurcated into two Union Territories. The act of bifurcation of the State into 2 Union Territories is not an act done by the government in Executive capacity. Parliament has expressed its views and granted its assent with an overwhelming majority of 2/3rd, effectively in place of the State Assembly. The objections being raised about the exercise of power in this manner are yet again political arguments and not legal ones since the political reality is that of one party enjoying a substantial majority in the House. Actions of the Executive can be challenged on grounds of abuse of power. However, in the present case - the Parliament, in ratifying the Bill, has expressed its views on behalf of the State Assembly and this act of Parliament, not being in Executive capacity, cannot be challenged on the ground of abuse of power.
Article 370 is the only Article which digressed substantially from India’s federal structure. Diluting Art. 370 has further integrated India. The provision had not only been placed in Chapter XXI of the Constitution i.e. temporary, transitional provisions, but was also framed in a manner such that its withdrawal would not even require Parliamentary approval or an amendment of the Constitution. It only required a Presidential Order i.e. exercise of Executive power.
Article 370(3) highlighted its own temporary nature when it expressly stated that the President may provide by order that the Article ceases to operate. There is no other provision in the Constitution that grants the President the power to promulgate an Order of this nature by which an Article will cease to operate. The possibility and method of its termination was woven into the Article itself, which makes it impossible to entertain the idea that this provision was ever envisaged to be a permanent feature of the Constitution. Article 370 is thus sui generis and cannot be compared to any other provision of the Constitution, let alone the other provisions in Part XXI. With a number of petitions pending before the Hon’ble Supreme Court of India, it is now left to the Court to decide whether the exercise conducted by the Government is legally tenable or whether it is time to set the clock back to 4th August 2019.
 Integration of the Indian States (Hyderabad: Orient Blackswan Pvt. Ltd. 2014) – V.P. Menon
 Jagmohan, 1991, My Frozen Turbulence in Kashmir, New Delhi.
 “What would India have been without Nehru?” – Manoj Joshi. https://herald.dawn.com/news/1153825
 Parts V and IX to XVII
 “Kashmir, Nehru’s Idealism and Article 370” – Dr. Makkhan Lal. https://www.vifindia.org/article/2018/july/kashmir-nehru-s-idealism-and-article-370
 J&K and Article 370: Jaitley's last blog post. https://www.deccanherald.com/national/jk-and-article-370-jaitleys-last-blog-post-756603.html
 Article 370(1)(b)
 Article 370(1)(d)
 Article 370(3)
 “What is Article 35A?” – Krishnadas Rajagopal https://www.thehindu.com/news/national/what-is-article-35a/article19567213.ece
 “Explained: What are Articles 370 and 35A?” – Faizan Mustafa https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
 APPENDIX I _569[THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 http://jklaw.nic.in/constitution_jk.pdf
 Arun Jaitley https://www.deccanherald.com/national/jk-and-article-370-jaitleys-last-blog-post-756603.html
 Article 370 led to growth of secessionist tendencies in Kashmir
 Kashmir Massacre May Signal the Coming of Widespread Violence – Amy Waldman (New York Times, 25 March 2003)
 SC rejects PIL for fresh probe into Kashmiri Pandit killings
 Losing hope: Who will give Kashmiri Pandits justice now that the Supreme Court has turned them away?
 State of Jammu and Kashmir v. Dr. Sushila Sawhney AIR 2003 JK 83
 Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 Is Unconstitutional by Justice GD Sharma https://www.ebc-india.com/lawyer/articles/2004v6a3.htm
 Dr. Charu Wali Khanna v. Union of India WP(C) No. 396 of 2017
 The Unseen Unheard Victims of Article 35(A) by Ratan Sharda https://www.newsbharati.com/Encyc/2019/8/9/The-Unseen-Unheard-Victims-of-Article-35-A-.html
 ‘Modi Did What Nehru Wanted To But Couldn’t On Article 370’ by S. Gurumurthy https://www.vifindia.org/article/2019/august/07/modi-did-what-nehru-wanted-to-but-couldnt-on-article-370
 ‘President’s Order 1954’ by Dr. Javid Iqbal https://www.greaterkashmir.com/news/opinion/presidents-order-1954/
 Why Centre’s decision to apply two constitutional provisions to J&K has sparked anger – and anxiety https://scroll.in/article/915397/why-centres-decision-to-apply-two-constitutional-provisions-to-j-k-has-sparked-anger-and-anxiety
 AIR 1956 SC 197
 AIR 1961 SC 1591
 Sampat Prakash v. State of J&K AIR 1970 SC 1118
 Mohd. Maqbool Damnoo v. State of Jammu and Kashmir AIR 1972 SC 963
 State Bank of India v. Santosh Gupta 2017(2) SCC 538
 President's rule in J&K extended for 6 more months beginning July 3
 Provisions in case of failure of constitutional machinery in the State http://jklaw.nic.in/pdf/CONSTITUTION%20.pdf
 Ministry of Home Affairs(Department of Jammu and Kashmir Affairs) Notification New Delhi 19 December 2018 http://egazette.nic.in/WriteReadData/2018/194042.pdf
 Ibid Clause (c)(ii)
 Constitution (Application to Jammu & Kashmir) Order, 2019 – Press Information Bureau, Government of India, Ministry of Home Affairs https://pib.gov.in/Pressreleaseshare.aspx?PRID=1581391
 Murthy Match Works Etc. v. The Asst. Collector of Central Excise (1974) 4 SCC 428
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