Professional Documents
Culture Documents
Article 21 of The Constitution of India
Article 21 of The Constitution of India
Article 21
Compiled By
Ankit Chowdhri
10/09
Contents
Topic Covered
Page Number
Table of Cases
Abbreviations
ii
Right to Reputation
Right to Livelihood
Right to Shelter
Right to Education
Right to be Informed
10
10
10
11
Euthanasia
Death Penalty
Right to Personal Liberty
12
13
13
Right to Privacy
15
15
16
Right to Go Abroad
16
16
17
18
18
Right to Bail
20
21
21
21
22
22
22
23
23
24
24
25
Right to Education
26
Bibliography
28
Table of Cases
Munn v. Illinois 2
R. Sukhanya v. R. Sridhar 15
Re Sant Ram 5
iii
Abbreviations
J.
Justice
&
and
v.
versus
SC
AIR
Vol.
Volume
Ed.
Edition
p.
Page Number
Del.
SCC
AP
Andhra Pradesh
UP
Uttar Pradesh
Bom.
Ltd.
Limited
Supp.
Supplementary
CrLJ
IPC
Mad.
Pat.
iv
The Article prohibits the deprivation of the above rights except according to a
procedure established by law.
Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the
American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of
the Constitution of Japan, 1946.6
Article 21 Applies to natural persons. The right is available to every person, citizen or
alien. Thus, even a foreigner can claim this right.7 It, however, does not entitle a foreigner the
right to reside and settle in India, as mentioned in Article 19 (1) (e).8
1
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In Chandra Raja Kumar v. Police Commissioner Hyderabad,18 it has been held that
the right to life includes right to life with human dignity and decency and, therefore, holding
of beauty contest is repugnant to dignity or decency of women and offends Article 21 of the
Constitution only if the same is grossly indecent, scurrilous, obscene or intended for
blackmailing. The government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition
Act, 1956.
In State of Maharashtra v. Chandrabhan,19 the Court struck down a provision of
Bombay Civil Service Rules, 1959, which provided for payment of only a nominal
subsistence allowance of Re. 1 per month to a suspended Government Servant upon his
conviction during the pendency of his appeal as unconstitutional on the ground that it was
violative of Article 21 of the Constitution.
Right to Reputation
The Supreme Court referring to D.F. Marion v. Minnie Davis,20 in Smt. Kiran Bedi
v. Committee of Inquiry,21 held that good reputation was an element of personal security and
was protective by the Constitution, equally with the right to the enjoyment of life, liberty and
property. The court affirmed that the right to enjoyment of life, liberty and property. The
court affirmed that the right to enjoyment of private reputation was of ancient origin and was
necessary to human society. The same American Decision has also been referred to in the
case of State of Maharashtra v. Public Concern of Governance Trust,22 where the court
held that good reputation was an element of personal security and was protected by the
constitution, equally with the right to the enjoyment of life, liberty and property.
In State of Bihar v. Lal Krishna Advani,23 a two member commission of inquiry
appointed to inquire into the communal disturbances in Bhaglapur district on 24th October,
1989, made some remarks in their report, which impinged upon the reputation of the
respondent as a public man, without affording him an opportunity of being heard. The apex
court ruled that it was amply clear that one was entitled to have and preserve ones reputation
18
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and one also had the right to protect it. The court further said that in case any authority , in
discharge of its duties fastened upon it under the law, transverse into the realm of personal
reputation adversely affecting him, it must provide a chance to him to have his say in the
matter. The court observed that the principle of natural justice made it incumbent upon the
authority to give an opportunity to the person, before any comment was made or opinion was
expressed which was likely to prejudicially affect that person.
Right to Livelihood
Earlier the Supreme Court took the view the right to life in Article 21 would not
include livelihood. In Re Sant Ram,27 the Supreme Court ruled that the right to livelihood
would not fall within the expression life in Article 21.
This view of the court underwent a change. With the defining of the word life in
Article 21 in broad and expansive manner, the court came to hold that the right to life
24
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Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni, AIR 1983 SC 109.
AIR 1986 SC 180.
30
AIR 1989 SC 1988.
29
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several general public and are not meant for private use. However, the court said that the
affected persons could apply for relocation and the concerned authorities were to consider the
representation and pass orders thereon.
In MX of Bombay Indian Inhabitants v. M/s. ZY31 held that a person tested positive
for HIV could not be rendered medically unfit solely on that ground so as to deny him the
employment. The right to life includes the right to livelihood. Therefore, right to livelihood
cannot hang on to the fancies of the individuals in authority.32 Even though the petitioner
might have been a nuisance to others and conducted themselves either in a disorderly way or
unbecoming on their profession but, that in itself, it is not sufficient for the executive to take
away their source of livelihood by an executive fiat.
Right to work has yet not been recognised as a Fundamental Right. In Secretary, State
of Karnataka v. Umadevi,33 the Court rejected that right to employment at the present point
of time can be included under Right to Life under Article 21.
Right to Shelter
In Shantisar Builders v. Narayan Khimlal Totame,34 the Supreme Court has ruled
that the right to life is guaranteed in any civilised society. That would take within its sweep
the right to food, the right to clothing, the right to descent environment and reasonable
accommodation to live in. the difference between the need of an animal and human being it
has to be a suitable accommodation which would allow him to grow in every aspect
physical, mental and intellectual.
It was stated in U.P. Avas Vikas Parishad v. Friends Coop. Housing Society
Limited,35 that the right to shelter is a fundamental right which springs from the right to
residence secured in Article 19 (1) (e) and the right to life guaranteed under Article 21.
In Chameli Singh v. State of Uttar Pradesh,36 the Supreme Court emphasised on the
importance of the right to shelter as one of the basic human rights designed to ensure all
facilities to the man to develop himself as a member of a civilised society.
31
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37
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Right to Education
The Supreme Court in Bandhu Mukti Morcha v. Union Of India,48while interpreting
the scope of the right to life under article 21, held that it included educational facilities.
In Mohini Jain v. State of Karnataka,49 the court referred to Bandhu Mukti Morcha
Case and held that right to life was the compendious expression for all those rights which
the courts must enforce because they are basic to the dignified enjoyment of life. The court
further observed that the right to life under article 21 and the dignity of an individual could
not be assured unless it was accompanied by the right to education. The court thus declared:
the right to education flows directly from right to life.
The Supreme Court in Unni Krishnan v. State of Andhra Pradesh50 held that the
right to education was a fundamental right under Article 21 and that it directly flows from
the right to life.
45
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The stance taken by the Supreme Court in the field has been reflected in the
Constitution (86th amendment) Act, 2002 inserting a new Article 21-A declaring right to
education an independent fundamental right.
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immediately to preserve life without legal formalities to be complied with the police. Article
21 casts the obligation on the state to preserve life. It is the obligation of those who are in
charge of the health of the community to preserve life so that the innocent may be protected
and the guilty may be punished. No law or state action can intervene to delay and discharge
this paramount obligation of the members of the medical profession.
Also more recently in the case of Poonam Sharma v. Union of India,58 the Court
held that it is the duty of the doctor to aid the injured and not to delay the same as it is of
utmost importance. Any delay, here wait for police before treatment, is taken to be violation
of ones fundamental right under Article 21.
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nor Article 14. The court held that the right to life under Article 21 did not include the
right to die.
Euthanasia
Aruna Ramchandra Shanbaug v. Union of India62
Passive euthanasia is legal in India. On 7 March 2011 the Supreme Court of India
legalised passive euthanasia by means of the withdrawal of life support to patients in a
permanent vegetative state. The decision was made as part of the verdict in a case involving
Aruna Shanbaug, who has been in a vegetative state for 37 years at King Edward Memorial
Hospital. The Court rejected active euthanasia by means of lethal injection. In the absence of
a law regulating euthanasia in India, the court stated that its decision becomes the law of the
land until the Indian parliament enacts a suitable law. Active euthanasia, including the
administration of lethal compounds for the purpose of ending life, is still illegal in India, and
in most countries.
While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the court laid out
guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves
the withdrawing of treatment or food that would allow the patient to live. As India had no law
about euthanasia, the Supreme Court's guidelines are law until and unless Parliament passes
legislation. The following guidelines were laid down:
1. A decision has to be taken to discontinue life support either by the parents or the
spouse or other close relatives, or in the absence of any of them, such a decision can
be taken even by a person or a body of persons acting as a next friend. It can also be
taken by the doctors attending the patient. However, the decision should be taken
bona fide in the best interest of the patient.
2. Even if a decision is taken by the near relatives or doctors or next friend to withdraw
life support, such a decision requires approval from the High Court concerned.
3. When such an application is filed the Chief Justice of the High Court should forthwith
constitute a Bench of at least two Judges who should decide to grant approval or not.
A committee of three reputed doctors to be nominated by the Bench, who will give
report regarding the condition of the patient. Before giving the verdict a notice
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regarding the report should be given to the close relatives and the State. After hearing
the parties, the High Court can give its verdict.
Death Penalty
The Supreme Court addressed the question of constitutionality of the death penalty for
the first time in Jagmohan Singh v State of Uttar Pradesh.63 The facts established
premeditated murder motivated by ill-feeling nurtured for years and the death sentence was
held proper. The Court concluded that death penalty was constitutionally permissible
provided it was imposed after a fair trial pursuant to a procedure established by law. In
rendering its decision the Court also emphasised that the discretionary judgments of the trial
Courts were subject to appellate review.
In Bachan Singh v. State of Punjab,64 the Supreme Court explained that Article 21
recognised the right of the State to deprive a person of his life in accordance with just, fair
and reasonable procedure established by valid law. It was further held that death penalty
awarded under Section 302 of IPC did not violate basic feature of the Constitution.
In Allauddin Mian v. State of Bihar,65 the Supreme Court referred to their earlier
pronouncements and held that death sentence should be reserved for the rarest cases which
are of exceptional nature.
63
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In A.K. Gopalan v. State of Madras,67 the petitioner, a leader of the communist party,
was detained under the Preventive Detention Act, 1950, as violative of his right to personal
liberty conferred in Article 21. The Supreme Court took a liberal view of the expression
personal liberty. The court held that since the word liberty was qualified by the word
personal which was a narrow concept, the expression personal liberty did not include all
that was implied in the term liberty. So interpreted the expression personal liberty meant
nothing more than the liberty of physical body i.e., freedom from arrest and detention from
false imprisonment or wrongful confinement.
This judgement was followed by Kharak Singh v. State of Uttar Pradesh,68 where
the court did not follow the narrow interpretation laid down by the above mentioned case and
held that:
Personal Liberty is used in Article 21 as a compendious term to include within itself
all the varieties if rights which go to make up the personal liberty of a man other than those
dealt with in several Clauses under Article 19(1). While Article 19(1) deals with particular
species or attributes of that freedom, personal liberty in Article 21 takes in and comprises
the residue.
The Court further also said in the said case that unauthorised intrusion into a persons
home and the disturbance caused to him thereby violated his right to personal liberty
enshrined in Article 21.
In Maneka Gandhi v. Union of India,69 the Supreme Court expanded the horizons of
the term Personal Liberty to give it the widest possible meaning. The Court held:
The expression personal liberty in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of a man and some of
them have been raised to the status of distinct fundamental rights and given additional
protection under Article 19.
In this case the Supreme Court gave a new dimension to Article 21 and it was with
this decision that the court started laying down new constitution jurisprudence. Various
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aspect of the right to personal liberty are discussed in the various facets of personal liberty
that follow.
Right to Privacy
Privacy has been defined as the state of being free form intrusion or disturbance in
ones private life and in affairs.70
In R. Sukhanya v. R. Sridhar,71 Court held publication of matrimonial proceedings,
meant to be conducted in camera, as invasion of right of privacy and more importantly the
Court also held that the rightful claim of an individual to determine to which he wishes to
share himself with others and control over the time, place and circumstances to communicate
with others.
In Malak Singh v. State of Punjab,72 the question related to as to when surveillance
of a person would be infringement of his right to privacy. In this case, the name of the
petitioner was included in the surveillance register by the police under section 23 of the
Punjab Police Act, he not being given an opportunity of being heard. Since he was not heard
and including his name in the register, he argued, had infringed his right to privacy under
Article 21. The Court held that organised crime cannot be successfully fought without close
watch of suspects. But, surveillance may be intrusive and it may so seriously encroach on the
privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by
Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1) (d).
That cannot be permitted.
In R. Rajagopal v. State of Tamil Nadu,73 the Supreme Court has asserted in recent
times the right to privacy has acquired constitutional Status; it is implicit in the right to life
and liberty guaranteed to the citizens by Article 21.
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office, without interference, could certainly be claimed as right to privacy, a part of the right
to life and personal liberty under Article 21. This right however may not be absolute.
Right to go Abroad
In the case of Satwant Singh v. Assistant Passport Officer, New Delhi,77 the
Supreme Court has included Right to travel abroad contained in by the expression personal
liberty within the meaning of Article 21.
The same was also resonated in the case of Maneka Gandhi v. Union of India,78 the
court held that a procedure established by law was required in depriving a person of his
personal liberty which included the right to travel abroad. The procedure mentioned herein
should not be arbitrary, unfair or unreasonable.
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days. Taking the serous note of the police high headedness and illegal detention of a free
citizen, the Supreme Court laid down the guidelines governing arrest of a person during
investigation:
The police officer shall inform the arrested person when he is brought
to the police station of this right.
In the case of D.K. Basu v. State of West Bengal,80 the Supreme Court laid down
detailed guidelines to be followed by the central and state investigating agencies in all cases
of arrest and detention till legal provisions are made in that behalf as preventive measures and
held that any form of torture or cruel inhuman or degrading treatment, whether it occurs
during interrogation, investigation or otherwise, falls within the ambit of Article 21.
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established by law. Article 21, has laid down a new constitutional and prison jurisprudence. 83
The rights and protections recognised to be given in the topics to follow.
See Kumar, Narender, The Constitutional Law of India, 1st Ed., Allahabad Law Agency, Allahabad, 2009, p.
158.
84
AIR 1978 SC 1548.
85
See Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private Limited, New Delhi,
2008, p. 677.
86
Sukh Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 : (1986) 2 SCC 401.
87
AIR 2008 SC 379.
88
AIR 1978 SC 597.
89
AIR 1979 SC 1360.
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situation and observed that it was carrying a shame on the judicial system which permitted
incarceration of men and women for such long periods of time without trials.
In Hussainara Khatoon v. Home Secretary, State of Bihar,90 the Court held that
detention of under-trial prisoners, in jail for period longer than what they would have been
sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus,
ordered the release from jail of all those under-trial prisoners, who had been in jail for longer
period than what they could have been sentenced had they been convicted.
In A.R. Antulay v. R.S. Nayak,91 a Constitution Bench of five judges of the Supreme
Court dealt with the question and laid down certain guidelines for ensuring speedy trial of
offences some of them have been listed below:92
Fair, just and reasonable procedure implicit in Article 21 creates a right in the
accused to be tried speedily.
Right to speedy trial flowing from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry, appeal, revision and retrial.
The concerns underlying the right of speedy trial from the point of view of the
accused are:
o The period of remand and pre-conviction detention should be as short
as possible.
o The worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, enquiry or trial
should be minimal; and
o Undue delay may well result in impairment of the ability of the
accused to defend him.
While determining whether undue delay has occurred, one must have regard to
all the attendant circumstances, including nature of offence, number of
accused and witnesses, the workload of the court concerned.
Each and every delay does not necessarily prejudice the accused.
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The Court has to balance and weigh the several relevant factors balancing
test or balancing processes and determine in each case whether the right to
speedy trial has been denied in a given case.
An objection based on denial of right to speedy trial and for relief on that
account should first be addressed to the High Court. Such, proceedings in the
High Court must be disposed on a priority basis.
In the case of Anil Rai v. State of Bihar,93 the Supreme Court directed the Judges of
the High Courts to give quick judgements and in certain circumstances the parties are to
submit application to the Chief Justice to move case to other bench or to do the needful at his
discretion.
Right to Bail
The Supreme Court has diagnosed the root cause for long pre-trial incarceration to be
the present-day unsatisfactory and irrational rules for bail which insists merely on financial
security from the accused and their sureties. Many of the under trials being poor and indigent
are unable to provide any financial security. Consequently they have to languish in prisons
awaiting their trials.94 But incarceration of persons charged with non-bailable offences during
pendency of trial cannot be questioned as violative of Article 21 since the same is authorised
by law.95
In the case of Babu Singh v. State of Uttar Pradesh,96 the Court held that right to bail
was included in the personal liberty under Article 21 and its refusal would be deprivation of
that liberty which could be authorised in accordance with the procedure established by law.
Anticipatory bail is a statutory right and it does not arise out of Article 21.
Anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of
right as it cannot be considered as an essential ingredient of Article 21.97
93
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98
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On receipt of the above order, the Supreme Court in Attorney General of India v.
Lachma Devi,104 held that the direction for execution of the death sentence was
unconstitutional and violative of Article 21. It was further made clear that death by public
hanging would be a barbaric practice. Although the crime for which the accused has been
found guilty was barbaric it would be a shame on the civilised society to reciprocate the
same. The Court said a barbaric crime should not have to be visited with a barbaric penalty.
Right against Bar Fetters: In Sunil Batra v. Delhi Administration,108 the Supreme
Court gave Right against Bar Fetters and held that treatment that offended human
dignity and reduced man to a level of beast would certainly be arbitrary and could be
questioned under Article 21, but the right is not absolute.
104
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infringement of personal liberty and that Article 21 included the right to wright the
book and get it published.
110
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of some kind of procedure was not enough. But, the procedure must be just, fair, reasonable
and not arbitrary, fanciful or oppressive.
Again in Olga Tellis v. Bombay Municipal Corporation,113 the Supreme Court has
again emphasised that the procedure prescribed by law for the deprivation of the right
conferred by Article 21 must be fair, just and reasonable. The procedure prescribed by law
for depriving a person of his right to life must conform to the norms of justice and fair play.
Procedure which is unjust or unfair in the circumstances of a case, attacks the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and,
consequently, the action taken under it.
Natural Justice, the Court said, was a great humanising principle intended to invest
law, with fairness. In order that the procedure was just, fair and reasonable, it should
conform to the principles of natural justice.114
113
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Thus, it was held that a law depriving a person of personal liberty has not only to
stand the test of Article 21 but it must also satisfy the requirements of Articles 19 and 14.
In I.R. Coelho v. State of Tamil Nadu,118 the Supreme Court ruled that Articles 14,
19 and 21 represented the foundational values, which formed the basis of judicial review
apart from the rule of law and separation of powers. These Articles, the Court ruled, is the
golden triangle, the basic feature of the Constitution, as it stands for equality and rule of law.
Right to Education
Article 21-A reads:
The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.
Article 21-A added by the Constitution (86th Amendment) Act, 2002 makes the
education from 6 to 14 years old, fundamental right, within the meaning of Part III of the
Constitution.
Article 21-A may be read with the new substituted Article 45 and new clause (k)
inserted in Article 51-A by the Constitution (86th Amendment) Act, 2002.
While the new Article 45 calls upon the State to endeavour to provide early
childhood care and education for all children until they complete the age of six years, Clause
(k) inserted in Article 51-A imposes a fundamental duty on parent/guardian to provide
opportunities for education to his child or, as the case may be, ward, between the age of six
and fourteen years.
The 86th Amendment will be enforced from a date to be notified by the Department of
Education in the Ministry if Human Resource Development.
The term child for the purpose of Article 21-A is held to be a child who is a citizen
of India. The Kerala High Court in Zeeshan v. District Education Officer, Kannur,119 upheld
the denial of admission to Standard V in a School of a child who was a citizen of Pakistan,
under Section 22(ii) of the Kerala Education Act, 1959.
118
119
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Holding the right to appear in Class VIII Board Examination was another facet of the
right to education guaranteed under Article 21-A, the Patna High Court in Anil Kumar Roy
Sharma v. State,120 directed the Board to permit the students of a private school to appear in
Class VIII Board examination.
If Article 21-A is read with Article 19(1)(a), all children shall have the freedom to
have primary education in a language of their choice.
In Associated Management of (Government Recognised Unaided English Medium)
Primary and Secondary Schools in Karnataka v. State of Karnataka,121 a full Bench of
Karnataka High Court held that by virtue of Article 21-A, the medium of instructions was to
be entirely the choice of the parents and the student and that no one could claim to know
better than the parents about the child, to decide as to what the child required in the sphere of
education, the shape the career and destiny.
120
121
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Bibliography
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Delhi, 2008.
Jain, M.P., Indian Constitutional Law, 6th Edition, LexisNexis Buttorworths Wadhwa
Nagpur, Gurgaon, 2010.
Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private
Limited, New Delhi, 2008.
Kumar, Narender; Introduction to the Constitutional Law of India, 1st Ed., Allahabad
Law Agency, Allahabad, 2009.
Majumdar, P.K. & Kataria, R.P, Commentary on the Constitution of India, 10th
Edition, Volume 1, Orient Publishing Company, Allahabad, 2009.
Pandey, J.N., The Constitution of India, 47th Edition, Central Law Agency, Allahabad,
2010.
The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New
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