Everyday Life of Assam’s Foreigners’ Tribunals

BANGAL

I was born in Assam and have been raised here. Today, I practice as a lawyer here. Most of my friends have been from the Assamese community. As a child, I never felt any different from any other person in Assam except I looked a little different from some maybe. My parents spoke Bengali at home whereas the majority language was Assamese. Both the languages came naturally to me. I can’t say the same about the present day but as a child my mother tongue was often presumed to be Assamese. And many had otherwise also commended me on how well I spoke the language. There is nothing to be surprised here because, like I said, I was born and raised here and made friends here.

But let me confess, I never liked studying Assamese in school. I disliked Hindi as much. Bengali was not a part of any of my schools’ curriculums. I can somehow manage to read in these languages. Being bred in English-medium schools and having been taught the English alphabet before anything, English was most convenient for me.

It was probably around my mid-teens that for the first time I was called a ‘Bangal’. I had heard the word before at home when my father would diminutively refer to my mother as so. Though meant as an insult, it never carried much venom. I never even wondered it meant then. But when it was directed at me, I felt it sting. And I have felt the same sting on every occasion that someone has called me so. I did not know what it meant for long. I learnt that Bengalis of East Pakistan/East Bengal origin were colloquially called ‘Bangals’. It gradually became more frequent to hear the word amongst circles of ‘friends’. And I started avoiding these circles for I felt very vulnerable there. As if being Bengali was a natural disadvantage and I could do nothing about it. I feared being called a ‘Bangal’. I hated the term. I even remember grabbing the collar of one of my dear friends when he called me that. I could grab his collar only because he was one of my dear friends. Today too, I hear the term occasionally and it still stings as much.

Until a couple of years ago, I was an ignorant wastrel, though my parents had little to waste and I had little objective. In 2016, I luckily got the opportunity to intern at the Human Rights Law Network, an organization that provides legal aid to the poor either for free or at minimal charges. I was in my second year of law studies then. I liked my workplace. It allowed me to travel and there was always something to do. Sometimes, I could offer a solution to a client who had a problem and it felt nice.

One of my seniors did an enormous amount of litigation at the Foreigners’ Tribunals. I did not initially know what these cases were about but I gradually learnt because I worked closely with her. Her clients never stopped pouring. These clients were visibly from the lowest rungs of society. I learnt that their citizenship was under question before the Tribunal. I gradually learnt about the intricacies of how these Tribunals functioned and today I know they are gauntlets. The Tribunals are apparently essential for ridding Assam of foreigners and imperative to the state’s social scheme of things. Around 458000 cases have been referred to the Foreigners’ Tribunals in the last 25 years. Presently, over 1.8 lakh cases are pending before these Tribunals.

I’ll tell you about the functioning of these Tribunals and I’ll try to tell you how the present legal scheme of things is what I believe a systemic deprivation of human dignity of millions of people. For my convenience, I’ll write in points:

The first step in identifying a foreigner is to suspect a person as one. At present, there is no transparent methodology laid down for raising such suspicion. Under the earlier prevailing provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, there was unfettered power granted to any random citizen to make an application, accompanied by an affidavit and a fee of Rs. 10, to an Illegal Migrants (Determination) Tribunal to try a person against whom the applicant has suspicion.

Power was also granted to the Central Government to refer individuals to the Illegal Migrants (Determination) Tribunal on the ground of suspicion. This power of the Central Government had been delegated to the Superintendent of Police (Border) of each district. One leash on the exercise of these powers by the Superintendent was the requirement of an enquiry to be made against the suspected person prior to a referral to the IMDT. What was meant to be a check had in fact given rise to an endless chain of illegality in the form of forged enquiries. The hundreds of clients that I have come across have all told me that they have never been subjected to a proper enquiry. And none of the hundreds of suspects that I have met has ever testified to a genuine enquiry made against him/her. But there has no finger yet been raised against any of these enquiries.

JALAL SHEIK

Jalal had come to Guwahati sometime in 2011/12 to earn his livelihood. He rented a cycle-rickshaw and rode it for about a week ferrying passengers in the Bhangagarh area of Guwahati. One day, he had to drop a patient-passenger at the Gauhati Medical College & Hospital. The patient insisted that Jalal take the rickshaw inside the campus and drop her at the absolute entrance of the hospital’s building. Jalal did so but while coming out of the campus, he was stopped by a couple of personnel from the Bhangagarh Police Station which is situated inside the campus of the hospital. The policepersons rebuked Jalal for bringing the Rickshaw inside the hospital’s campus and one of them demanded an amount of Rupees One Thousand as fine. Jalal did not have the money and the policepersons then directed Jalal to fetch his elector photo identity card. Jalal had to leave his rickshaw at the police station and returned some time later with the identity card as demanded. The policepersons simply kept a copy of the identity card with them and let Jalal go. Jalal was never questioned about his citizenship.

Jalal soon left Guwahati as he found other work. One day, he received a notice from the Foreigners’ Tribunal No. 2 of Kamrup(M) which directed him to appear before the Tribunal and prove his citizenship, and on failing to do so, the Court would proceed ex-parte against him which basically meant that the Tribunal would hold him as foreigner without hearing him. Jalal had no choice. He appeared on the day specified in the notice and made arrangements with a lawyer to represent him. He could only pay an amount of Rupees Four Thousand to the counsel. He had no more money. Jalal’s counsel submitted a Written Statement on behalf of Jalal before the Tribunal and on multiple other occasions sought adjournments from the Court on various grounds. Jalal knew little. He is illiterate. On every date fixed, he watched his counsel go into the courtroom, come out and tell him his next date. On every such date the counsel demanded Jalal to pay more money. Jalal could not pay, he had no money to pay. Eventually, the counsel stopped seeking adjournments and the Tribunal proceeded ex-parte and declared Jalal as a foreigner. Initially, Jalal did not know what had happened. Until he was told what exactly had happened. He was now facing an impending detention. It was then that someone from the hundreds of suspects that appear before the Tribunal to prove their citizenship told Jalal about some lawyer who represented these ‘foreigners’ free of charge. The lawyer was Debasmita Ghosh.

Jalal approached Debasmita and I was assigned the task of preparing his case. On obtaining certified copies of his case record, it surprised me then when I found that there were two enquiries made against Jalal within a span of two months. But surprisingly, the enquiry officer was the same and both enquiries were against Jalal but the two enquiries spoke two different stories replete with ten fingerprints of Jalal for each enquiry. When I asked Jalal, he said his fingerprints had never been taken by the police and documents relating to his citizenship had never been sought. Nor any related question related to his citizenship had ever been asked. And he did not know any of the persons who eloquently spoke about him in the report.

I soon figured the forgery, prepared an ambitious petition demanding Rupees Ten Lakhs as compensation before the High Court for Jalal and disciplinary action against the enquiry officer. I also sought for setting aside of the ex-parte order passed against Jalal. Debasmita argued the case and the High Court simply set aside the ex-parte order and directed Jalal to appear before the Tribunal and prove his citizenship. That’s that. When the High Court did not care about forged enquiries, of course the Tribunal did not too.

Here is one occasion where the same police station had forged two different enquiries against the same person. There are many other cases where different police stations have initiated enquiries against the same person each without knowledge of the other pending enquiry. This is simply because the enquiry does not actually happen. If the enquiries had been genuine, the person being enquired against would have at least informed the enquiry officers of the other enquiry against them.

Presently, after the IMDT Act was declared unconstitutional (for laying the burden on the State to prove a person’s illegal residence in India and ironically for being too lenient on the suspect), there is a cloud over the procedure of the enquiry against suspects. Nevertheless, the Border Department of the Assam Police is continuing with the enquiries about which the suspects themselves know little. It is pointless to show your documents to the enquirers even if they inform you about the enquiry. They initiate the enquiry with the objective of making a reference and not to actually inquire.

REFERENCE

Once a reference is made, the Tribunal issues notice to the person to whom the reference pertains. Now some Tribunals (like the ones of Morigaon district) have evolved the practice of issuing notice to all family members of the person against whom the reference pertains. Now, the Foreigners’ Tribunals are governed by the Foreigners’ Order, 1964. The Order lays down the procedural aspects of the Tribunals. The Order only lays down a limited number of provisions regarding the procedure to be followed by the Tribunals and as regards the rest, it grants liberty to the Tribunals to innovate its own procedure, subject to the objective of arriving at an opinion regarding the citizenship of such person against whom the reference is made. This I sometimes think is appalling considering the fact that Tribunals do not have established systems like the civil courts and it is a Tribunal whose procedural aspects have not been concretised yet that has been cast the responsibility of determining matters as critical as one’s citizenship. Even some of the written procedures of Tribunals are not followed for reasons of sheer impracticability.

Now as regards the issue of notice, the law is clear that notice must be issued to only such persons against whom reference is made as the Tribunal only has jurisdiction to opine on the citizenship of such a person against whom a reference has been made. Thus, the practice of issuing notice to entire families despite reference being made against only one of them is illegal. Moreover, this part is important in the light of the fact that despite belonging to the same family, the grounds of citizenship may vary from one family member to another. Suppose, in a family of five, father had migrated to India in 1966 and gotten married in 1970. Of their three children, the first one was born in 1974, the second in 1982 and the third in 1989. In such a case, the citizenship of the father has to be decided as per Section 6A of the Citizenship Act, the citizenship of the mother would depend upon her own father’s/mother’s citizenship/residential status and she may either be a citizen by birth or may be governed by the provisions of the Assam Accord incorporated in Section 6A of the Citizenship Act. The citizenship of the first two children would be decided in accordance with Section 3(1) whereas that of the third child would rely on Section 3(2) of the Citizenship Act. Thus, it is clear that an enquiry against one person cannot suffice in forming an opinion on the citizenship of such person’s family members and thereby separate enquiry against each person is necessary. Only, on the basis of such an individual enquiry can an opinion be formed about a person’s citizenship and accordingly a reference made. And on the basis of such a reference, a Tribunal can give an opinion on the citizenship of only that particular person against whom the reference has been made.

NOTICE

Once a notice is issued, the suspect (hereon referred to as the proceedee) is bound to appear before the Tribunal or he will be declared foreigner without even being heard. An order passed without hearing the proceedee is called an ex-parte order. Now to appear before the Tribunal, the suspect has to engage a lawyer. An imbecile may argue that the Foreigners’ Order, 1964, permits one to appear personally without a lawyer. The members heading the Tribunals are judicial officers. The reply of the proceedee is expected in the form of a Written Statement. His evidence is initially taken in the form of an evidence-on-affidavit and he is cross-examined by a public prosecutor where one has been appointed and members heading the Tribunals are also free to ask any question to the proceedee in line with Section 165 of the Indian Evidence Act, 1872. It is quite impossible for an illiterate fragile proceedee to do these without the assistance of a lawyer.

So engaging a lawyer is imperative. There are few lawyers who are well versed all aspects of Foreigners’ law. In Guwahati itself, I regularly come across lawyers who do not know what the basic law of citizenship actually says. I have come across numerous flawed judgments too. Some people who were born much after 25th March, 1971, and were even held to be born in India have been declared by the Tribunal as foreigners of the stream of 1966 to 1971 only because their parents were held to have migrated during that period {Section 6A(3) of the Citizenship Act, 1955}. Even I have assisted some such ‘foreigners’ in getting registered before the Foreigners Regional Registration Office.

As regards the question of a lawyer’s professional fees, a good lawyer understandably does not come cheap. But for the usual proceedees of Foreigners’ Tribunals, any lawyer does not come cheap. I have also observed that some of the lawyers charge much more than what they would have charged from a client who is much better positioned than the proceedee; simply because these lawyers are otherwise not doing quote well professionally and the proceedees are vulnerable, so the lawyers see it as an opportunity to exploit the proceedees (bluntly speaking) and earn a quick buck. Often, the proceedees try to pay whatever the lawyer demands by selling their essential belongings. I have also come across proceedees who have sold their land to pay the lawyer’s fee. The proceedees are usually desperate to get their cases over with because it is not just any other case but a question on one’s citizenship. Such a question has dire implications, one important one being on the mere fundamental free existence of the person. I have also read about people who have killed themselves for not being able to pay the lawyer’s fees. One such dead man is Abola Roy of Dhubri district, who apparently belonged to the Koch-Rajbongshi community and earned his livelihood through daily wage labour and whose wife was marked as ‘D’ voter and had to thereby prove her citizenship before the Tribunal. Abola killed himself because he could not afford a lawyer to represent his wife. Then there’s Gopal Das, a farmer from Udalguri district who killed himself because he could not afford to rid himself of the ‘D voter’ tag {Mitra N. (July 10, 2018); “No money to prove his wife’s citizenship, Assam man kills self”; The Times of India}.

Another significant expense involved is the expenditure on procuring documents to prove one’s citizenship. How does one prove his/her citizenship? It can be done by proving the existence of his/her ancestors in the state. Now how can one prove such existence? That can be done by proving the existence of one’s ancestors in the electoral rolls. Where does one get decades-old electoral rolls? Such electoral rolls can be found but it has become necessary to present certified copies of such electoral rolls to prove their authenticity in line with the provisions relating to public documents in the Indian Evidence Act, 1872. In order to procure certified copies of electoral rolls from Election Offices, the proceedee again engages a lawyer who charges for himself and for the staff at the Election Offices. Many Tribunals require about seven to eight certified copies of different electoral rolls to be somewhat satisfied of the proceedee’s claim of citizenship and each one, on an average, costs about Rs. 700-1000. So it involves an expenditure of Rs. 5000-7000.

There is also a cost in Tribunals akin to the cost of getting files moved in Government offices. It is often a pain dealing with some of the staffs in our courts and Tribunals. If you want a certified copy of any case record, you have to pay a considerable amount. One particular Tribunal I know of requires the proceedees to take bail on their first appearance. Getting a bail bond executed in that Tribunal is again an expense-filled process.

It is also common to seek adjournments in Tribunals. Sometimes the lawyers haven’t got their fees, sometimes the proceedee hasn’t been able to procure all documents and sometimes the proceedee is just not concerned about his case. Some Tribunals had started imposing fines (or costs) amounting in hundreds for each such adjournment and the proceedees were compelled to pay such costs.

The opportunity cost incurred by a proceedee in appearing before the Tribunal must also be kept in mind. The proceedees are more often than not working on piecemeal basis and appearing before the Tribunal costs them their day’s wage in addition to the expenses on travel. Then there is the expense of witnesses that the proceedees bring to the Tribunal. These witnesses come from different districts (usually their native villages) and the proceedee has to bear the cost of such witnesses’ travel, stay and food.

So the expense of litigating in a Foreigners’ Tribunal, without the involvement of a middle-man, is in multiples of Ten Thousand per proceeding and often much more. Cases that require to be taken up to the High Court require at least another few Ten Thousands.

PROCEEDING

Let us now look into the actual proceedings before a Tribunal. No matter how intra vires our Constitution it may have been held to be by our apex court, our High Court and the executive, a Foreigners’ Tribunal often functions on the borders of communalism. Hindu Bengalis and Muslim Bengalis are the chunk of the proceedees and the rest few comprise of Koch Rajbonghis, Garos, Hajongs and Assamese Muslims. The proceedees are questioned about who their great grandfather and great grandmother(s) were, where they resided and how many children they had and often when each of these children was born. Then come the grandfather and grandmother and similar questions which include naming siblings of the grandfather. The proceedees are asked about the children of the grandparents and the sometimes even the year of their parents’ births. Then the proceedees are asked when his/her parents got married and when each of his/her brothers and sisters were born. The proceedee is also expected to accurately know where his/her grandparents lived, from where to where and when their ancestors had migrated. And all these accounts of the proceedee have to conform to the answers of the proceedee’s witnesses and any discrepancy between them often has dire consequences.

Answering such questions is often a herculean task for the proceedees and their witnesses who are usually illiterate and unaware. They make inadvertent mistakes and these mistakes decide their fate.

And it is not just verbal accounts that must be cohesive but such accounts must also conform to the documentary evidence that has been laid before the Tribunal. One of the most common discrepancies that can be identified is the age mentioned in electoral rolls. Such age only on the rarest of occasions tells the true age of an elector. The ages recorded are often absurd with even discrepancies to the range of the age of an elector being recorded as more than his father’s or mother’s. Then there is also the problem of slight variations in names from one document to another. This is more common amongst Muslims whose surnames often vary from one record to another. These discrepancies can often lead to actual citizens being declared as foreigners.

DETENTION

Let us now look into the fate of a proceedee who has been declared a foreigner. The proceedee is liable to be put in detention camp. Assam does not have detention camps but parts of the state’s jails have been designated as detention camps and foreigners are kept there. And they remain there for India has no deportation agreement with Bangladesh. There are several rights violations that go on in these detention camps and little is known publicly about what actually goes on inside these camps. An article written by Harsh Mander based on his fact-finding in such camps is one of the first written accounts of the conditions in these detention camps.

Regarding the condition of detention camps, Harsh Mander, a Special Monitor for Minorities of the National Human Rights Commission visited two such camps in January, 2018, and wrote a poignant account of the conditions of people in such camps. In his words, the “detention centres lie on the dark side of both legality and humanitarian principles.” He observed that most of the persons deemed foreigners had been detained on the basis of “ex-parte orders”. For those who did receive the notices and appeared before the Tribunals, many had sold their meager properties and taken large loans to hire lawyers to steer them through the process. Many of the lawyers were poorly qualified or had deliberately led them down. About the majority detained on the basis of ex-parte orders, he writes, “As a humane democracy, we provide legal aid even to people accused of heinous crimes like rape and murder, but in this case, without even committing any crime, these people are languishing in detention centres as they cannot afford legal services.” 

Mander says the condition of detainees is worse than prisoners. He gives a tragic account of the camps, stating how the detainees are in much greater confinement than other “citizen prisoners”. About women detainees of Kokrajhar jail, he says these women have not been allowed to move outside a confined space of maybe 500 square metres for close to a decade. 

There are no guidelines or instructions from the Centre or the state about the rights of detainees and the detention centres are administered under the Assam Jail Manual. The state does not make any distinction, for all practical purposes, between detention centres and jails, and thus between detainees and prisoners charged with or convicted of crimes. Jail authorities selectively apply the Assam Jail Manual to them, denying them benefits like parole and waged work that prisoners are entitled to under jail rules. 

Men, women and boys above six years have been separated from their families. The report goes on talk about how the arbitrary, indefinite detention in conditions similar to prisoners is in violation of international laws and how the fundamental rights, especially the most sacrosanct rights guaranteed through Article 21, is under threat in the light of the upcoming NRC which can possibly render lakhs stateless. And India has no policy regarding how these stateless are to be dealt with.

So, the truth about detention camps has been let out. Much is there in the report and to understand the gravity of the situation, I sincerely urge people to go through the article and the full report if that ever gets published.

The only legal remedy available to detainees, whether detained via ex-parte orders or otherwise, is to take up the matter before the High Court. As mentioned earlier, charges for taking a case up to the High Court usually ranges in many multiples of ten thousand and sometimes in lakhs. Thus, irrespective of how legally strong an argument could be made and how erroneous the judgment of a Tribunal might be, many are likely to be deprived of an opportunity to approach the High Court because they cannot afford it. Such people, in all likelihood, could be genuine citizens but without an opportunity to prove it.

DILIP BISWAS

Here, let me tell you about the case of Dilip Biswas, his wife and two minor daughters. Dilip Biswas ran a small business in a little kiosk in Mayong village where he sold biscuits, tea and poori-sabji. The headman of his village often visited his shop and demanded food free of cost. One day, an irritated Dilip Biswas refused to provide free food to the headman and an altercation between the two took place. Vindictively, the headman went to the local police station and contrived with an inspector of the border department and a direction to enquire was obtained, an enquiry report was made up and submitted against Dilip Biswas. Subsequently a reference was made against Dilip to the Foreigners’ Tribunal, Morigaon. The Tribunal, instead of issuing notice to only Dilip Biswas, issued notice to his wife and children too. Dilip and his family received notice of the proceeding quite late and much after the date mentioned in it for appearance. By the time they went to the Tribunal, an ex-parte order had been passed against them. Dilip sprung to action then and hired a local lawyer to approach the High Court who got the ex-parte order set aside and Dilip and his family were made to appear before the Tribunal again to contest the reference. The same lawyer represented them and lost. To me, the judgment was erroneous and the case was poorly argued by the lawyer. But for his services, the lawyer had charged over Rupees Two Lakhs. Dilip paid by selling off all his land and some of his brother’s too. And at the end, his family ended up in detention camp and has been there since 2011. While Dilip is lodged in Goalpara jail, his wife and two daughters are in Kokrajhar jail. Through some means, Dilip’s brother came to know about the Human Rights Law Network in 2017 and approached them. The Tribunal’s order has now been challenged before the Gauhati High Court but the detainees still remain in jail. Bail was not granted on the first day and the case has not been listed again.

SO?

Someone mentioned to me that there is xenophobia prevalent is Assam. Maybe or may not be but there sure seems to be some suppressed hatred against a particular country, maybe even a community and underneath it all a feeling of threat. Understandable some may argue it to be, but the basic truth is thousands of innocents are suffering. And there is no compensatory mechanism to ease the pain of these innocents. Even without meddling into the social and political aspects, the legalities involved are questionable. The procedure of Tribunals and view of its Members vary from one to another. Unlike civil courts and High Courts, Tribunals are not as well established and are relatively new. Now who will compensate for the discrepancies in our system? Who will compensate a person declared as a citizen by a Foreigners’ Tribunal for the months of litigation and tension that he/she had to go through? Who will compensate a migrant labourer who has left his job in Kerala and stayed in Assam for months without employment only to get done with the proceeding against him before a Foreigners’ Tribunal? There may not be a conclusive solution to all these problems and some may argue that the need of the hour is to identify foreigners but the least our State could do is to show some concern.

Article 21 of the Constitution of India guarantees to all persons the right to life and personal liberty. Flowing from this fundamental right is a gamut of human rights including the right to be treated with dignity, the right to a fair enquiry and the right to legal representation. But these rights appear to be under serious threat and are being violated.

Why are judges scrutinizing the poor and illiterate so minutely? As a matter of fact, the electoral rolls contain endless mistakes. The mistakes in recording ages in electoral rolls are common and this mistake is irrespective of one’s community. These electoral rolls were never meant to be proof of one’s age. There is an apparent propensity to err not on the side of humane caution but on the side of jeopardizing innocent poor.

To add salt to wound, a recent order of the High Court says that the principle of res judicata does not apply to proceedings before the Foreigners’ Tribunals. This implies that one reference after another can be made against the same person to the Tribunal by the Central Government if the latter is not satisfied with the opinion of the earlier Tribunals. The order does not even state that the referring authority has to give sufficient grounds why it does not accept the opinion of the earlier Tribunal. But contrary to its own view, the order goes on to say that if a person has already been declared a foreigner, then there is no need of referring him again. Thus, if a Tribunal’s opinion is favourable for the referee, a subsequent reference may be made against him in contrast to the provisions of res judicata and the conventional writ appeal. But where a proceedee is declared a foreigner, the proceedee is only left with the option of writ appeals before the High Court.

I’m often afraid, angry and frustrated and so is my mother. She tells me she was born here and has worked her entire life in a Tribunal (the Motor Accident Claims Tribunal) and tells me emphatically that she is the most hard-working in her office. I believe her because I have grown up seeing her bringing home work everyday. She rarely misses office because she tells me her office would not function without her and the public would suffer. Today, I hope that she would not receive a notice from some Foreigners’ Tribunal dictating her to appear and prove her nationality. I am optimistic and hopeful that she wouldn’t because we aren’t really poor. But I’ll tell you that we are vulnerable and fearful with enough reasons to feel so.

The “Axom Sahitya Sabha” recently communicated to the public through the media that it must be made compulsory to know Assamese for everyone to live and work in the state. Well, my friends in Bangalore complain that the local folks there dislike it if they don’t speak Kannad. Are we tit for tatting now?

I have travelled much of the state for work but I have always been apprehensive of telling people my surname because they judge. When people know my surname is ‘Dey’, I often feel that I no longer belong to this state even though I hardly know much about any other part of the world. It’s a tragedy I believe which is as poignant one as any.

I respect one’s love for a language and one’s rich knowledge of it and its history but I also believe such love and knowledge is much different from reverently identifying oneself as indigenous to a particular land in a globalised world and the latter is narrow-mindedness to me. For the sake of humanity, all must learn to separately identify the two. In the words of George Carlin, “Pride should be reserved for something you achieve or attain on your own, not something that happens by accident of birth’.

 

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Sauradeep Dey Written by:

I am an advocate and have been enrolled in the Bar in May, 2018

One Comment

  1. August 3, 2018
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    crucial article. thank you for this.

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