India China shares a 3,488 km (2,167 miles) long disputed border. The two nuclear-armed powers with a combined population of 2.7 billion, have been gathering thousands of troops at a disputed border in a remote area of the Himalayas.

Both the nations are competing to build infrastructure along the border, also known as Line of Actual Control. India’ constructions of a new road to a high-altitude air base is seen as one of the main triggers for the clash of soldiers in June 2020, that left 20 Indian soldiers dead.Rivers, lakes and snowcaps mean the line separating soldiers can shift and they often come close toconfrontation.

The Bigger Picture

This conflict started dates back to the 1950s. Hassle were reported after India granted Dalai Lama asylum against Chinese rule in Tibet in 1959. After three years in the year 1962 war broke out after China objected to India establishing posts along the boundaries, demarcated by Britishers in 1914 between the Tibetan region and northeast India. India suffered a humiliating defeat in this war. Simmering tensions involve the risk of escalation on both sides. Clashes were also reported in 1967 and again in 1967 and again in 1987.

As the years passed relation between both the nations were improved as the two-government signed five treaties between 1993 and 2013.

Insights of a Treaties

1.      1993- Agreement of maintenance of peace and tranquility along the LAC. (Agreement in accordance with the five principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interfere in each other internal affairs, equality and mutual benefit and peace coexistence.)

2.      1996- Agreement of confidence- building measures in military field along the LAC. (No use of military capability against the other side, mutually accept the settlement of boundaries, Reduce or limit their respective military forces within mutually agreed geographical zones, ensures that Air intrusions across the LAC do not take place).

3.      2005- Protocol on the modalities of confidence building measures in the military field along the LAC. (The two sides should strictly respect and observe the LAC and work together to maintain peace and tranquility in border areas, the two sides shall safeguard due interests of their settled population).

4.      2012- Agreement on the establishment of a working mechanism for consultation and coordination on India-China borders affairs.(Explore the possibilities of cooperation in the border areas, holds consultation once or twice every year in India and China).

5.      2013- Agreement of border defense cooperation.(Refrain from any provocative action, not use force against the other side and treat each other with courtesy, jointly combat smuggling of arms, wildlife and wildlife articles and other contrabands, each side may invite the other side for celebrations on the major national or military days or festivals and organize cultural activities).

Galwan Valley Clash

On May 5, China surprised India deploying troops in the three mains locations Pangong Tso, Galwan valley a glacial lake at 14,000 feet in the Tibetanplateau, Demchok and Daulat Beg Oldie in the eastern Ladakh. Indian and Chinese Army were engaged in the standoff.

The standoff at Galwan valley has escalated in recent weeks due to the infrastructure projects that India had undertaken in the recent years. India is building a strategic road through the Galwan valley which is very close to China connecting the region to an airstrip.Standoff in the Galwan region was one of the biggest flashpoints of the 1962 war. China is opposed to any Indian construction in the area. China said at the time it was unacceptable that India “continued to undermine its territorial sovereignty.”

After weeks of hassle left scores of troops injured, the standoff entered a new more dangerous phase in mid- June when 20 Indian soldiers martyred in the deadly clash with Chinese soldiers in the Galwan area. This was the first deadly clashes on the border in four decades. Days earlier it had appeared efforts to lower the temperature on both the diplomatic and military fronts, indicating that they were pulling back forces while talks continued.

Peace Talk of China: Reality or, mere Illusion

For the first time since 1980’s blood wish shed in the India -China border. China started talking about peace, but its actions do not match its words. China is engaging in fresh provocation. More than a year after the clashes in Galwan, China is escalating the border standoff. Chinese troops deployments are now at the highest level in decades. In the past few months Peoples Liberation Army gradually increase the number of troops now there are 50 thousand personals an increase of 15 thousand. Most of this troops are spread up and set up in the center of the recent standoff.

China has moved advanced surface-to-air missiles to the region, including its HQ-9 system. PLA’s army has built hundreds of new structures to support troops at military encampments at the town of Rudok, in Tibet’s Ladakh Frontierand Kangxiwar, a plateau which connects Tibet with Xinjiang region.

These recent buildups are triggering further clashes between the troops. India and China have held about a dozen rounds of peace talks between military and diplomatic officials since the confrontation last year in an effort to de -escalate tensions between two nations.

“Disengagement from all friction points followed by de-escalation and a commitment to maintain peace and tranquility along the border is the way forward to resolve the standoff and improve bilateral relations”.

India’s and China’s stands

Both are blaming each other and saying that they have the right to defend their territory and citizens.The main quos started due to the spread of corona virus where the whole world believes that the China is the only reason for the spread of Corona virus due to research done in the laboratory of Wuhan institute. India started boycotting od Chinese goods, ban on Chinese apps. China has been relatively mute. On the centenary of the Chinese Communist Party. Xi Jinping says that China would not accept “sanctimonious preaching”, root out any elements who harms the party’s purity this type of suppressing speech shows a different stance of China.

Measures to improve India- China Relation

China and India have achieved tremendous progress in multi-sector co-operation.Notwithstanding that progress, challenges still exist in the bilateral relationship, however. This includes economic constraints, border disputes and perception problems.

·         Upgrading the current Sino-Indian Strategic and Economic Dialogue meetings to a higher level – for example, by having future dialogues led by the Chinese State Councillor and Indian National Security Advisor, with the full participation of diplomatic, economic and military policymakers;

  • Strengthening co-ordination and communication in regional and global institutions;
  • Working on non-traditional security issues, such as the maritime security co-operation, and making it a basis for better mutual understanding;
  • Careful handling of sensitive issues – particularly such issues as the Tibetan independence movement, the South China Sea and the so-called “String of Pearls”; and,
  • Promoting open regionalism and rejecting the idea that East Asia and South Asia should be viewed as separate blocs and defined regions.

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Author: Akash Tiwari, National University of Study and Research in Law, Ranchi

 

There is nothing wrong in change if it is in the right direction. To improve is to change, so to be perfect is to have changed often -Winston Churchill

The volume and complexity of what we know have exceeded our ability to deliver its benefits correctly, safely, or reliably.The unprecedented rates at which Information Technology has affected and changed our lives in practically all spheres that are from personal to professional is something very strenuous to cope up with. It is safe to say that technology is the sole catalyst that has driven all the major changes for decades now. Humanity has been in a race to catch up with the new innovations coming in and trying to adapt to this age of machine living. We have simply accepted to be ruled by technology under the pretext of efficiency and comfortable lifestyle and once that premise is accepted, we are left with absolutely no choice but to keep adapting to the never-ending technological feats or advancements and keep implementing them in our lives. The legal field is no exception to this, and this paper will deal with the changes in the legal field which have been caused due to technological advances and the future possibilities of innovations that can be adopted to revolutionise the legal field. For any drastic change to be brought into any field, it is important to overcome the challenges such field poses to break the status quo and move towards change.

DEVELOPMENT OF E-COURTS IN INDIA

Any major development or change in any field takes a lot of time and planning. Similarly, the integration of technology in the legal field in India happened gradually over a period of time starting from the 1990s.The policymakers were convinced that the use of technology can make the judicial system more effective and efficient. Around 1992-1996, the Planning Commission along with National Informatics Centre (NIC) initiated the process of upgradation and computerisation of High Courts following which in 1997, 430 district courts with the funds of the Information Technology Ministry were computerised by the NIC. On 28th December 2004, an e-Committee was established to formulate a comprehensive policy for the Indian Judiciary to be computerised and technologically sound.A huge boost to the goal of achieving computerised courts was in 2006-2007 [2][i] when Rs.600 crores were allocated to the Central Sector Scheme with total central funding under the 11th Five Year Plan. The Department of Justice suggested this total transformation must be done in two distinct phases and further NIC was assigned as the Implementing Agency for the first stage of the e-Committee’s National Policy in 2007.

VIDEOCONFERENCING IN COURTROOMS

Over the time the Supreme court of India, High courts and even District courts under the circumstances in particular cases allowed video conferencing to be used in courtrooms for presenting evidence and testimony and setting precedents for other courts to follow because till date there are no exact provisions in any statute or piece of legislation which dictates the procedure for utilization of video conferencing in courtrooms. The very first case of IPC where the court proceedings were conducted via video conferencing was of the local court of Ahmedabad, where the local court ordered trial through video conferencing on a complaint filed by QamaruddinSaiyad. Additional sessions judge KK Dholakia ordered the prosecution to conduct court proceedings through video conferencing from Sabarmati Central Jail. The complaint was filed that four-murder accused- Dilawar alias GauravSaiyad, Fardeen Sharfuddin, Farid Ghanch and Shahrukh Seetharam&Chandrasekharan, e-courts in India from policy formulation to implementation, Vidhi Centre for Legal Policy (2016) Khan Pathan threatened him during court proceedings, that on the day of production and court hearing, both the parties are present in front of each other and emotions run high on both the sides. Therefore, it was considered best that the accused should be kept in prison custody and be brought before the court to conduct proceedings through video conferencing. Moreover, he pointed out that this would reduce the expenditure and resources spent overproduction and bringing the accused in court from jail, and that there would be no scope for escape for the accused persons.

 

MERITS AND DEMERITS OF VIDEOCONFERENCING IN COURTROOMS

The rapid rate of modernization of the system and government's policy of connecting every part of the system with each other through technology has also played a very important role in the use of video conferencing inside the courtrooms.

MERITS OF VIDEO CONFERENCING

i.                    Efficiency-We all are well known about the backlogs and pending cases in the Indian Judiciary System. Video Conferencing can act as a catalyst and speed up the proceedings being a better means of communication and proceedings. This can be a great boon for the system.

ii.                  Cost-Effectiveness- Video Conferencing can help the Judicial System by saving a huge amount of money which can be used in other prospects of that needs to be developed.Let us take an example wherein a case there is the need of the presence of prison inmates in the court proceeding.

iii.                Security- Security concerns while the transportation of prison inmates from custody to courts is a very important issue, the risks of which are often heightened in cases of inmates accused of multiple crimes, large gang members or leaders where there is an always risk of their extraction and attack on security personnel.

DEMERITS OF VIDEO CONFERENCING

i.                    Reliability- When it comes to the use of technology, many people raise the concern and raise some brows on the reliability of such technology. The dependency on internet connection and electricity might be a hindrance in the use and its reliability on the use of video conferencing during court proceedings.

ii.                  Lack of Technical Know-How One of the major problems when it comes to the use of technology is the lack of technical know-how among the majority of the country's population. Though technological knowledge has considerably increased in the country's population in recent times, with more than 80% of the population owning smartphones.

ASSESSMENT BY LEGAL PRACTITIONERS

As discussed earlier the different aspects of video conferencing in courtrooms along with its acceptability and challenges, it is also pertinent to see how is it really operating in the practical world. Due to Covid-19 pandemic, the Supreme Court of India has started conducting hearings on matters of importance through video conferencing March 27 onwards.

·         E-Filing and Hearing Process - The filing of the petitions is now being done through the Supreme Court portal which is not very user-friendly and many of the advocates are facing numerous problems while filing petitions.

·         Connectivity Issues and Technical Irregularities - There have been reports of failure of links provided for the hearings. At initial period only one link used to be shared due to which the instructing lawyer could not take part in the process and even if the links are provided to other lawyers, then there is not enough space for many lawyers.

 

CONCLUSION

Amidst the havoc created by the global pandemic Covid-19, technology has ensured that even at a time when everyone is to be maintained, the entire Judicial and Legal System of the nation doesn't come to a standstill.To conclude, technology will always remain an ever-advancing field of growth to which humanity has to keep pace with or fall short and as the Legal System of any nation can be considered as a mirror to the society of the particular nation, the Legal System needs to keep evolving to maintain the dynamic nature of society and law with technology.

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Author – Akash Tiwari, National University of Study and Research in Law, Ranchi


[1] Richard E. Susskind, Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts, Oxford University Press (2015).

[2] E-Committee Supreme Court of India, Policy and Action Plan Document Phase II of the e-courts Project (8th Jan 2014).

 

Background

The dream built in 2009, and the foundation was laid in 2012, Gujarat International Finance Tec (GIFT) city, the country’s first business district housing an International Finance Service Centre (IFSC) and SEZ for the domestic and international financial services. India attempts to capture business from financial services hubs like Singapore and London with the way of offering incentives to the investors conducting foreign financial transactions in this hub with a single-window clearance by a unified regulator IFSCA for quick compliance regulation.

Measures and impact

In the Finance Act, 2021 and other regulations made by the SEBI, the tax treatment of AIFs, Aircraft leasing, encouraging foreign offshore funds to relocate to India, banking and broking services, the objective is to attract investors.[1][2][3]

In April 2021, a huge number of applications were received at GIFT city to set up international financial service operations. There were 25 companies with 12 new ones lined up for investment proposals at GIFT IFSC. These proposals include the ones from Singapore Stock Exchange, fund management companies like DSP Asset Managers, Kedaara Capital, and Rising Fintech, Vman Aero Services, and many more.

PE Offshore Funds’ Internal Reorganization

Corporate reorganization broadly includes arrangements and compromises entered by the companies with their creditors or members, mergers, demergers, and amalgamations between group entities. There is a reorganization of the capital structure to make it attractive to investors.

Foreign funds with an FPI license need corporate reorganization, which would also include shifting of the assets from an account to another. There are two ways in which the fund could transfer the assets which are market hours and off-market hours. Market hours transfer would be an impact on the share price of the company. Trading in dematerialized securities is quite similar to trading in physical securities. The major difference is that at the time of settlement, instead of delivery/receipt of securities in the physical form, the same is affected through account transfers. An AIF can invest in listed securities in India under the Foreign Portfolio Investor (FPI) route. The AIF should also obtain an FPI license from SEBI under the SEBI (FPI) regulations, - 2019.

Off-Market Transfer of Assets/Shares

There are various costs involved in the transfer of shares/assets through the Stock exchange in India:

1.       Brokerage

2.       Securities transaction tax - 0.1% of the transaction value for delivery-based equity share trades.

3.       Stamp duty and GST – 9% CGST and 9% SGST

4.       Transaction charges – 0.0002% of the transaction amount

5.       Depository participant

6.       Capital Gains

Income on the transfer of shares in an Indian company is taxable as follows to Category III AIF:

1.      Short-term Capital Gains - 15% if Securities Transaction Tax paid, else 30%

2.      Long-term Capital Gains - 10% which is similar to FPIs, which are exempted from tax.[4]

In April 2019, around six foreign funds seeking to complete mergers and buyout off-market applied to the Security Exchange Board of India, which was not approved and put on hold. Due to the charges levied on the transactions done through the stock exchange, the funds have requested the SEBI to allow them to transfer the shares/Assets as a part of an acquisition deal through the Off-market route. SEBI insisted to compete with the stated transactions through the recognized stock exchange to maintain transparency.

In August 2019, in a circular[5], SEBI relaxed the norms for FPI in regulatory compliance by:

1.      Simplification of KYC requirements

2.      Permission to carry out the off-market transfer of securities

3.      Broadening of the diversification of FPIs

4.      Easing the registration process

The classification was replaced by II-tier than the earlier III tier.

Since the years, there have been many incentives announced by the Ministry of Finance and regulatory bodies.[6] The boiled-down objective of all the incentives is to encourage the relocation of offshore funds to IFSC and building a global financial hub.

FPIs deal gets sweetened

On June 1, 2021, SEBI released a circular that addressed the objective of the ambition of GIFT city by paving the way to the relocation of the funds to IFSC, under the Finance Act 2021.[7] SEBI permitted a one-time ‘off market’ transfer of its securities to the “resultant fund”. It permitted the transfer of the securities of the offshore funds to the new accounts through off-market transactions.

A Foreign Portfolio Investor, with the base jurisdiction of the offshores, like Singapore, Dubai, has the ability to transfer the base from the offshore to IFSC to avail the tax incentives and benefits offered to the investors based in IFSC GIFT.

Steps to transfer offshore funds to IFSC

The first step for an offshore fund to relocate to IFSC is to get an FPI license. With this, their existing investments would be stored in the accounts that at linked to their overseas entity. These would be further transferred from the old Demat account to the new one attached to IFSC FPI on the exchange and buying the securities irrespective of the merger or relocation. This gave a lot of flexibility to the fund manager in terms of relocation and reorganization of the funds.

There was an amendment in the Finance Bill, which allowed the SPVs (Special Purpose Vehicles), as a subsidiary of the offshore funds to isolate or scrutinize corporate assets and financial risk, where the offshore fund sells assets off of its balance sheet to the SPV, to transfer securities to an IFSC fund (resultant fund) in the GIFT City with the enable to the IFSC fund to issue shares either to the investors or the offshore fund itself.

FPI or its wholly-owned special purpose vehicle could approach the Designated Depository Participants (DDP) to approve a one-time “off-market” transfer of its securities to the resultant fund after due diligence.[8]

Impact of permitting “off-market” transfer of assets

The impact of the circular would be much beyond the surface area of the impact. The flexibility provided in the few IFSCs across the globe imbibes them with the quality and value to attract global investors and fund managers. It would provide the much-needed flexibility to the fund managers to transfer their assets to the IFSC, to avail the incentives, with an added advantage to choose freely the course of transfer i.e., Off-market. Transferring the assets during the market hours would impact their share prices, would burden them with transaction costs.

When not permitted, the funds are used to transfer their assets by selling and repurchasing the assets on the Indian securities market. The cost of transferring the assets from overseas funds to IFSC will be reduced. The experience in the IFSC GIFT would be similar on this tangent as of other IFSCs that allow off-market transfers like Singapore, Netherlands, and Luxembourg.

Income earned on the sale of debt and derivatives is exempted from tax. Income and dividend income are under the lower tax rate bracket of 10%. Offshore funds setting up as a category III AIF in the IFSC are entitled to a special tax regime. The Finance Act, 2021 has amended various provisions of the ITA to facilitate tax neutrality concerning the relocation of offshore funds to the IFSC. The funds earlier used to take support of tax treaties to reduce/exempt from tax. Offshore funds had to comply with General Anti Avoidance Rule, an anti-tax avoidance law, to prevent tax evasion and Multilateral Instruments (MLI),[9] to prevent tax treaty abuse under the tax treaties to reduce or seek exemption.

Conclusion

India has been pushing out itself from the prejudices and boxes to become an area of value and quality of business and investment. Setting up the first IFSC in the country is a humongous project that has a lot of potentials, with a lot of time which would take to reach the potential of global IFSCs. With incentives in finance and taxation, a large number of companies have proposed to invest at GIFT. The flexibility of transferring assets from offshore to IFSC, off-market would attract fund managers to transfer their assets to GIFT. The combination of incentives liberalized taxation, and flexible compliance would get India to achieve its ambition to become a gateway for inbound and outbound requirements of the international financial services.

AUTHORED BY: SAPTAK PANDYA


Introduction

Right from the time when an embryo is formed our Indian constitution provides basic fundamental rights to each and every citizen. Some of these fundamental rights are for everyone including the non-citizens but some exclusively for the Indian citizens. Article 21 is one such fundamental right which is available to both citizens as well as non-citizens. Article 21 says that everyone is entitled ‘Right to life’. Right to life means that everyone has a basic right to live a dignified life. This right to life also includes the right to die with dignity but this right to die with dignity means the right to die voluntarily and with proper respect and not by the mistake or on the wishes of someone else. This right to die with dignity should not be read same as right to die an unnatural death and reducing the life span of the person. This right to die with dignity is termed as Euthanasia.

The word euthanasia is derived from Greek world 'eu' which means good and 'thantos' which means death so, indirectly euthanasia means ending the life of a person for the benefit of that person. Euthanasia is the act of ending the life span of a person who is suffering from an incurable disease or is in a condition which is full of suffering and misery and which is beyond repair, through suspension of medical treatments or injections, in order to free the person from such intolerable pain and suffering, act of ending the life of that individual text place. This process is known as euthanasia or mercy killing which means taking the life of a person intentionally in a painless manner and which sets the individual free of the end of an irreparable living conditions of suffering and pain.

 

Forms of Euthanasia

1.      Physician assisted suicide (PAS): - in this process the physician with the consent of the individual provides for a medical treatment which results in the death of the person in a painless manner. It is considered as the most effective method of dying.

2.      Voluntary euthanasia: - it is a process in which the individual is in full consciousness decides to end his or her life with the help of another person. Before this kind of euthanasia takes place, the person who is willing to end his life must be made aware of the process and his full consent should be obtained before the process of voluntary euthanasia begins.

3.      Non voluntary euthanasia: - in this the decision of ending the life of an individual is taken by some other person like family members or life partners etc. This happens when the individual is in a permanent state of unconsciousness and it is incurable then such kind of decision can be taken by some other person.

4.      Activeeuthanasia: - it means where the doctor himself or herself interferes and directly ends the life of an individual who is in a state of permanent suffering which are irremediable and endless. The consent of the individual is important. The doctor can directly cause the death of the individual in a painless manner either by giving a high dose of a drug or by injecting a lethal. This type of euthanasia is known as Positive or Aggressive euthanasia.

5.      Passive euthanasia: - means when the individual intentionally withdraws itself from the necessary and essential elements like food water etc., which in turn causes the death of the individual. This process also includes the intentional removal of the artificial life support system. This form of euthanasia is known as Negative or Non-Aggressive euthanasia. Passive euthanasia is considered to be a slower form of killing than active euthanasia.

 

Is euthanasia constitutionally valid?

 

Passive euthanasia is the only form of euthanasia which is constitutionally valid in India. In Common Cause (a regd. society) v. UOI[1], it was held that a person’s fundamental rights also includes the right to die with dignity. This can be availed only when a patient is suffering from an incurable disease or a prolonged disease which has no cure and only has endless pain and suffering or have reached the state of permanent vegetation where there is almost no hope of survival or where the patient is alive only with the help of artificial life support system. In such conditions, passive euthanasia is allowed.

 

Before this judgment even passive euthanasia was unconstitutional in India. The doctor who caused euthanasia was penalized under exception 5 of section 300 of the IPC which had a requisite that the doctor had the intention of causing death of the concerned patient, In cases of voluntary euthanasia the doctor was punishable for culpable homicide not amounting to murder since there was a valid consent, thedoctorof such person causing euthanasia was penalized under the ambit of section 304 of the IPC. Only voluntary euthanasia is punishable under section 304 of the IPC and not non voluntary euthanasia because in voluntary euthanasia the person himself gives the consent to cause his death. Active euthanasia was always a crime in India.

 

In Gian Kaur v. state of Punjab[2], the most important points in the favour of legalizing euthanasia in India were laid down by the Court that right to life provided under the constitution includes the right to die. However, this was rejected by Supreme Court and Supreme Court held that the right to life under article 21 does not include the right to die and by no means it can be stretched to mean the same. Hence, the Supreme Court was not in the favour to hold the illegality of euthanasia to be constitutionally invalid.

 

In Aruna Ramchandra Shanbaug v.UOI[3] it was held that for an incompetent person who is not able to take decisions as to whether to withdraw life support or not, since the courts are considered to be the guardian of the constitution, it is the court alone, which can ultimately take decision in the case where an incompetent person was unable to take a decision whether to withdraw life support or not, the views of the family member, spouse and doctors must be given importance. Consequently, in this case, to Supreme Court held that active euthanasia is completelyillegal, passiveeuthanasia, to an extent, following the guidelines laid down in the case, legalized.

 

The 241streport of the Law Commission has recommended the legalization of euthanasia.

Indian courts have recognized passive euthanasia, in which the doctor does not cause the death of the person he just simply does not save him by stopping the ongoing treatment or removing the life support systems through which the patient was alive. Active euthanasia which occurs as a result of administering or injecting a high dose of lethal drug or the over dosage of such a drug or medicine which otherwise would not be lethal but because of the overdosage in the body of the victim has been recognized in the Indian court as of now.

 

Conclusion

Euthanasia has been legalizedrecognized by some of the countries in the world but the legalization of euthanasia in India is still not very accepting. The Indian courts have taken a long time from the cases of Gian Kaur, Aruna Shanbaug, to the case of Common Cause (a regd. society) in recognizing and legalizingeuthanasia and have legalized passive, voluntary euthanasia. Supreme Court is the highest court of judicature and its decisions are binding and all the citizens of the country hence it's decision of legalizing passive voluntary euthanasia is appreciated. Active euthanasia has not been legalized yet.

 

 

“This article is authored by Kavya Jain, student of UPES, Dehradun”.



[1]Common Cause v. UOI, 2018 (5)SCC 1, AIR 2018 SC 1665

[2]Gian Kaur v. State of Punjab, 1966 AIR 946

[3]Aruna Shanbaug v. UOI, 2011 (2) SCC 454

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