Laws make no sense if not enforced. And people will play with animals till we realise the right to co-existence
All of humanity needs to hang its head in shame for an inhuman deed that took place on May 27 in Malappuram, Kerala. A 15-year-old pregnant tusker, looking for food, strayed into a village where the trusting and unsuspecting creature was fed a pineapple stuffed with crackers. The fruit exploded in the elephant’s mouth ripping off a part of its face and tongue. The poor pachyderm, despite being in intense pain, ran through the streets without harming a soul till it came to the river. It stood in the water for hours, defeating all attempts by the forest department to help it, before dying a slow and excruciating death due to the injuries and asphyxia as water had gone into its lungs and trachea. Sadly, this is not the first incident of such unspeakable cruelty inflicted on animals in India. A similar incident had happened in Kollam with another elephant in April where the animal had eaten fruits laden with explosives and died a slow and painful death. So, the question is how is it that the perpetrators of such heinous crimes go unpunished when cruelty against animals is a cognisable offence under Section 428 and Section 429 of the Indian Penal Code and the country also has one of the strictest wildlife protection laws in the world? While some countries are now waking up to regulating trade in wildlife, India leads the prohibition on ivory trade. Some of the biggest triumphs for animal welfare here in the last decade saw the ban of dolphinariums in 2013, prohibition on animal testing for cosmetics in 2014, followed by a ban on the import of cosmetics tested on animals. India also prohibited the export of shark fins for use in soup and does not allow wild animals in circuses.
Yet we are confronted with heart-wrenching stories of depraved behaviour towards animals. For this to stop, we must make our law enforcement agencies aware about the rights of animals to be treated with kindness and dignity and about how grave an offence it is to subject an animal to cruelty. Punishment should be quick and stringent. Law enforcement agencies must not always wait for activist judges to lead the way in this regard. Plus, we, as a society must teach our children the basic truth that the world is meant to be shared by all God’s creations and we must learn to live together with them. They have as much right to live on this planet as we do. In fact, animals form a vital part of the biodiversity and each creature has a role to play in the circle of life. If we disrupt that, we will have to bear the consequences of it.
(Courtesy: The Pioneer)
The new labour laws being enacted by the Centre and various State Governments might create another lockdown even as the economy limps back to normalcy after having all but collapsed
In what is perceived as possibly the last phase of the lockdown, with States being given the powers to implement relaxations by the Centre and economic activity once again being started across urban and rural India, a wave of resentment is brewing among the organised sector of the working class and trade unions in the country.
Indeed, images of tens of thousands of migrant workers in dire straits, walking without food and water in this scorching heat on highways and streets to unknown destinations, especially in the Hindi heartland, have shocked the national conscience, even while death and highway accidents of the workers seem to have become routine.
It is in this context that the new labour laws being enacted by the Centre and various State Governments might create another lockdown, even as the economy limps back to normalcy after having all but collapsed, especially in the urban sector, with the agricultural economy on the threshold of a disaster despite a very good harvest. Indeed, the almost 77 million tonnes of foodgrains lying in the Food Corporation of India (FCI) godowns, and the huge output post-harvest season, especially in States like Punjab, Haryana, Western Uttar Pradesh (UP) and Maharashtra, are bound to lead to another crisis, especially when the monsoon season sets in.
With the BJP-led Central Government refusing to release the overflowing foodgrain for the jobless and homeless migrant workers, or the poor, even while rejecting the proposals of several top economists like Amartya Sen, Raghuram Rajan and Abhijit Banerjee, the rural economy will yet again find itself in a Catch-22 situation. Already, the crisis of the past has not been resolved: For instance sugarcane farmers in Western UP have largely not been paid the minimum support price while their payment from the mills is still pending. A similar situation might erupt in Maharashtra with onion farmers among others.
The migrant workers, who have gone back to their hometowns and villages, are not returning anytime soon despite the booster announced by the Union Finance Minister, Ms Nirmala Sitharaman. Sources say that the financial “bonanza” announced by the Centre might just prove to be yet another “jumla” while largely benefitting certain industrialists close to the Delhi regime. The real estate and construction industry has not recovered and even the cream of the industry, Information Technology has faced retrenchment of employees.
Almost 10,000 workers of a successful and cheap brand of biscuits like Parle G had to be sacked just because there was no purchasing power in small towns and rural India to buy these glucose biscuits. Hundreds of employees have been sacked in media organisations in recent times with not even a whimper of protest.
With coal mines and airports being privatised, among other public sector units (PSUs), a collapsing economy, faced with a gigantic unemployment problem among the organised and unorganised workers, including among the educated and white-collar professionals, the country can slip into a major crisis yet again. Almost 40 million workers are slated to lose their jobs. Indeed, post-demonetisation and Goods and Services Tax (GST), the small and medium-scale industry had virtually shut down, affecting tens of thousands of daily wagers and small and medium entrepreneurs.
Even flourishing industrial zones like Surat in Gujarat had risen in revolt before the last Lok Sabha elections. It took major maneuvering and persuasion by Home Minister Amit Shah to get the pro-BJP traders to the polling booths. Indeed, sociologists had earlier predicted that the mass protests against the National Register of Citizens (NRC) and Citizenship Amendment Act (CAA) all over the country were also triggered by mass joblessness and a state of perpetual anxiety about a stable future.
Besides, after the shocking and horrifying images of the poor and starving migrant workers, men, women and children, have hit social media, and the Western media, the international image of the country has taken a big beating. This kind of a national trauma on such a massive scale and as a daily and relentless public spectacle for almost two months has not been seen in any part of the world during the pandemic, not even in the sub-continent, in Africa or the Middle-East. Surely, India is on a sticky wicket not only in terms of its Gross Domestic Product (GDP) or growth rate and per capita income. Its moral and ethical core has been disrupted and proved crudely transparent in front of the whole world.
It is in this pessimistic context that the one-day hunger strike by the leaders of 10 Central Trade Unions on May 22 against the new labour laws rattled the Central Government, which is still to find its economic scaffolding.
The demands of the unions included restoration of labour laws that have been changed or their implementation put on hold in about 10 States consisting of both BJP and non-BJP ruled ones. In a joint petition to Prime Minister Narendra Modi, the union leaders sought immediate relief to stranded workers and arrangements for safe return to their homes. They also demanded immediate halt to indiscriminate privatisation of PSUs. Even as the trade unions approached the International Labour Organisation (ILO), the Government refused to engage in a dialogue with the leaders and they were detained for violating the restrictions of the lockdown. However, the trade unions have said that this protest was just the beginning and their struggle would continue.
Amid all this chaos, experts have declared that the latest Government booster for the small and medium enterprises is just not enough. It should be noted that the majority of the working class in India do not even fall under the organised or formal sector. They constitute almost 93 per cent of the workforce, have no trade union cover or other rights such as work guarantee, fixed-wage hours or wages, maternity leave, provident fund, pension and so on. They are just “free labour” out to be exploited by all concerned. Half of them are women, Dalits, extremely backward castes, landless labourers and the poorest of the poor. Understandably, the labour laws have been declared draconian by the unions, whereby the lockdown has been used to bulldoze them.
Some of them are outrageous, like increasing the work hours per day from eight to 12 hours, something the labour movement had gained after the famous May uprising in the Hay Market in Chicago in the 1830s, celebrated all over the world as May Day. The suspension of a large number of labour laws for three years by UP and the Madhya Pradesh Government’s decision to allow companies to “hire and fire” workers coincided with Gujarat, Himachal Pradesh, Haryana, Rajasthan, Punjab, Bihar, Odisha and Maharashtra increasing the daily working hours. Significantly, the BJP trade union, BMS, did not join the protest while the Congress trade union, INTUC did, though the Congress State Governments, too, are tagging along on the new labour laws.
Among the “draconian measures”, the Yogi Adityanath Government in UP has made 38 laws meaningless for almost three years, including the Industrial Disputes Act, Trade Union Act, Equal Remuneration Act, Maternity Benefit Act, Act on Occupational Safety and Health, Interstate Migrant Labour Act and the Contract Labour Act.
The BJP-ruled Madhya Pradesh Government has ushered in serious changes in the Factories Act, Contract Act and Industrial Dispute Act. Hire and fire seems to be the new pandemic doctrine, with most workers’ rights being taken away, including regarding wages, safety and compensation, and contractors and industry running without any regulations. May 22 marked the beginning of a new chapter in the working class’ struggle in India, even as the tragic narrative of mass migration of the unorganised workers continues relentlessly. Will it mark a paradigm shift in the current scenario? Only time will tell. But for now the workers are not giving up.
(Writer: Amit Sengupta; Courtesy: The Pioneer)
The plans that were devised by the Centre under the provisions of the Disaster Management Act, 2005, did not foresee such a huge calamity and the humanitarian crisis emerging out of it
The complete lockdown of the country within three-four hours of the announcement regarding it in a televised address by Prime Minister Narendra Modi and the plight of migrant workers around the country, forced to trudge back to their hometowns, thousands of kilometres away, hungry, thirsty and tired, reflect that India was not prepared for the impending disaster. This is despite the fact that the danger had been looming over us since the outbreak of the Coronavirus in China months ago.
An overconfident Government had not thought it prudent to devise a plan for the efficient management of the pandemic that has brought developed countries, with better healthcare systems than ours, to their knees.
The Government was ill-prepared to handle a disaster, the likes of which this world has not seen after the 1918 Spanish fever which infected nearly 500 million people worldwide and killed an estimated 30-50 million.
Obviously, the plans that were devised by the Centre under the provisions of the Disaster Management Act, 2005, did not foresee such a huge calamity and the humanitarian crisis emerging out of it. Disaster management concentrates on making arrangements to diminish the impact of a calamity. Failure to make such an arrangement could prompt large-scale human casualties, loss of income to the masses and losses to India Inc, which in turn, prove disastrous for the economy.
Hence, plans relating to disaster management should pursue the nature of disaster vis-a-vis its management. The Government mainly functions based on the enactments made by the legislature. Hence, all the programmes, conceived plans and guidelines would be within the framework of the legislations made in the said regard.
The United Nations General Assembly (UNGA) decided to observe the ’90s as the International Decade for Natural Disaster Reduction (IDNDR). It initiated a global campaign towards creating socio-economic strategies for countries during natural disasters. Now, due to the UNGA’s efforts, many countries around the world have disaster related legislations. Pursuant to the same, in 1999 the Indian Government, too, set up a High Powered Committee (HPC) on disaster management.
Thereafter, a series of catastrophic natural disasters such as the Gujarat earthquake in 2001 and the tsunami in 2004, led to the enactment of the Disaster Management Act, 2005. Though it was the first step in the right direction, the entire legislation was drafted with a myopic view. The definition of “disaster” under Section 2(d) of the Act defines disaster as a catastrophic, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes or by accident/negligence which results in substantial loss of life or human suffering or damage to property or degradation of the environment and is of such nature or magnitude that it is beyond the coping capacity of the community of the affected area.
A reading of the aforesaid definition shows that the same has been drafted keeping in mind disasters such as tsunamis, cyclones, earthquakes, industrial or fire accidents and so on, vis-a-vis specified areas. It did not visualise a situation wherein a disaster may be caused because of cross-border viral contaminations spreading throughout the country. The use of the words “any area” in the definition of “disaster” is very confined. It relates to only a particular area within the country wherein such a natural disaster occurs. On the whole, the matter of public health has been unable to find any space in the legislation.
The Act also provides for establishment of a number of statutory bodies such as the National Disaster Management Authority (NDMA), the State Disaster Management Authorities (SDMAs), advisory committees, executive committees and sub-committees under the Government. The establishment of so many committees and authorities does not seem to have a strong logical foundation. There are such overlapping duties found among various authorities in the Act that they are bound to confuse people. Further, the coordination among these bodies appears to be very cumbersome.
Though Section 3 of the Act contemplates establishment of the NDMA with the Prime Minister as its Chairperson and other members, not exceeding nine, being nominated by him/her, no qualification has been specified for the members. This should have been done because it is an authority at the national level, dealing with an issue of national importance. In the context of the political scenario of our country, the appointments to the national authority can be strongly influenced by political motives, which defeats the whole purpose.
Section 6 of the Act contemplates the powers of the national authority and it is empowered to formulate policies, plans and guidelines in relation to disaster management. However, these would be in consonance with the definition of “disaster” contained in Section 2(d) of the Act, which is quite narrow.
Obviously the entire Act would be implemented in the backdrop of the definition of “disaster” contained in Section 2(d). Therefore, all the plans would be short-sighted, confined only to disasters of a particular nature which relate to particular areas.
Our lack of preparedness to meet a pandemic like the Coronavirus requires an amendment to the definition of “disaster” as contained in the Act, so as to enable the Government to formulate plans and policies in consonance with it.
At present, we are witnessing an exodus of migratory workers from the cities, deprivation of livelihood of daily-wage earners, break in supply chains, hardship in distribution of essential commodity to those who live Below the Poverty Line (BPL), hospital management/facilities and so on.
We have to devise plans in such a manner that they minimise the adverse effects of a disaster as enormous as the Coronavirus outbreak.
Anticipating a disaster is one aspect and post-disaster management is another. In order to anticipate a disaster and to formulate a policy, the definition also should include such disasters which may affect the whole country and not just be confined to the extent of those disasters which are limited to a specific area. If such an amendment is brought in, a suitable plan would be formulated by the competent authorities under the Act.
Section 42 of the Act empowered the Central Government to constitute a National Institute of Disaster Management (NIDM), the main function of which is to develop, undertake research and documentation in relation to disaster management.
The NIDM also conducts programmes and formulates comprehensive human resource development plans covering all aspects of disaster management. But as stated earlier, the entire action would be directed against only those aspects which can be termed as a “disaster” in accordance with Section 2(d) of the Act.
Section 35 contemplates measures to be taken by the Government in relation to disaster management. The Central Government shall coordinate with all the Ministries, State Governments, the national and State authorities. Though Section 35 empowers the Central Government to take measures, in the light of the narrow definition of disaster, it would be very difficult to visualise a situation that has arisen right now.
No disaster can be ever dealt with effectively only through administrative set-up, alienating the community as a whole. But unfortunately, the Act entirely ignores this very important aspect. The Act is implemented entirely through the Government system.
Now the Government has to bring in a suitable amendment to the 2005 Act to effectively deal with such situations as presented by the Coronavirus pandemic. More particularly the definition of “disaster” under Section 2(d) has to be amended so as to bring into its fold calamities/disasters like the one which the country is facing now in order for the Government to be able to effectively handle the present calamity.
Unfortunately, the Disaster Management (Amendment) Bill, 2016 moved by Mullappally Ramachandran for the amendment to the Disaster Management Act, 2005 also does not contemplate any amendment to the definition of “disaster.” It only proposes an amendment to Section 11 and Section 35 which relate to preparation of plans and stipulating guidelines. But the same would be futile unless the definition is amended.
(Writer: Chittarvu Raghu; Courtesy: The Pioneer)
India’s Supreme Court judges warn democracy is in danger
In a stunning move, four of the senior-most judges of India’s Supreme Court have publicly slammed the functioning of the country’s top court and warned that democracy will not survive without an independent judiciary.
Four senior judges of India’s Supreme Court have complained publicly about the way the court is being run and cases are assigned. They accused Chief Justice Dipak Misra of ignoring their suggestions to take remedial measures.
In a press conference on 12 Jan 2018, the first of its kind to be held by sitting Supreme Court judges, Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph alleged selective assignment of important cases to benches by Chief Justice Misra.
The judges’ move highlights the widening rift in the upper echelons of the country’s judiciary. The press conference was held at the house of Justice Chelameswar, who is lower in seniority only to the chief justice of India
The judges’ move highlights the widening rift in the upper echelons of the country’s judiciary. The press conference was held at the house of Justice Chelameswar, who is lower in seniority only to the chief justice of India.
“This is an extraordinary event in the history of any nation, more particularly this nation, and an extraordinary event in the institution of judiciary,” Justice Chelameswar told reporters.
‘This is an extraordinary event in the history of any nation, more particularly this nation, and an extraordinary event in the institution of judiciary,’ said Justice Chelameswar.
“It is with no pleasure that we are compelled to call this press conference. But sometimes administration of the Supreme Court is not in order, and many things which are less than desirable have happened in the last few months,” Chelameswar said. “Democracy cannot survive without an independent judiciary,” the judge added. “We tried to collectively persuade the chief justice of India that certain things are not right and remedial measures need to be taken, but unfortunately we failed.” Misra, who took over as chief justice in August 2017, has yet to comment on the allegations. In a letter to Chief Justice Misra that has been made public, the judges said they “are not mentioning details only to avoid embarrassing the institution.”
Mixed Reactions
observers say it was unprecedented for Indian judges to publicly criticize the head of the country’s highest court. The action drew mixed reactions, with some praising the four judges and others condemning them.
R.S. Sodhi, a retired Supreme Court justice, was quoted by The Associated Press news agency as saying that the judges’ decision to express their grievances openly was appalling. He said they should have sought redress within the system.
Former solicitor general of India N Santosh Hegde said he was “devastated” by their action which has caused “irrep- arable” damage to the institution. “As a retired judge of the Supreme Court, I feel devastated. “For some reason or the other, their cause is justified, (but) relief they are seeking is wrong…going to the media? No. Judiciary was always considered as a family. Family disputes are never taken to the streets,” Hegde told the Press Trust of India news agency.
But Supreme Court advocate Indira Jaising described the press conference as “historic.”
“I think we, the people of India, have a right to know what is going on within the judiciary and I welcome this,” she said.
Former Law Minister Hansraj Bharadwaj said the allegations made by the judges are a loss of prestige for the entire institution. “If you lose public’s trust, what remains?” Bharadwaj told the Indian news agency, ANI. “Judiciary must remain the pillar of democracy. It is the responsibility of the law minister to see how it functions.”
The opposition Congress party also chimed in, tweeting: “We are very concerned to hear four judges of the Supreme Court expressed concerns about the functioning of the Supreme Court.” Senior politician and Bharatiya Janata Party leader Yashwant Sinha said on Twitter that he stood firmly with the four judges. “Seen some of the comments. Stand firmly with the four judges. Instead of criticising them, let us concentrate on the issues raised by them. If the highest court is compromised then democracy is in peril,” he wrote.
Prime Minister Narendra Modi’s government, especially the law minis- try, was guarded in its reaction, view- ing it as “an internal matter of the judiciary.”
Influential and slow
India’s Supreme Court is the highest judicial forum and the final court of appeals in the country. It currently comprises the chief justice and 24 other senior judges, with six vacancies.
The institution wields enormous influence in the South Asian nation and has in the past revoked laws passed by the parliament that it regarded as in- fringing upon citizens’ rights.
The four senior justices, along with the CJI, are part of the Supreme Court collegium that selects judges to the apex court and high courts.
The controversy comes at a time when Indian judiciary is already struggling with its reputation for being a snail-paced justice delivery system, with a huge backlog of pending cases.
It’s estimated that about 30 million cases are pending in various courts across the country.
The government and judiciary in India need to focus on delivering justice to its citizen and restore credibility of the institution that is vital for the survival of democracy in India. The individual judge has limited value in the entire eco system so the present battle of top judges must be ignored and the focus must shift back to address the larger institutional issues at the earliest.
(Writer is Editor of Opinion Express and regular columnist to The Pioneer)
There are many other judges who retired from the Bench and who later took up political postings offered by the parties in power
Ranjan Gogoi, the newly sworn-in member of the Rajya Sabha, is the cynosure of all eyes as well as the favourite whipping boy, at the moment, depending on which side of the fence people are on.
His critics say that the decision of the former Chief Justice of India (CJI) to accept the nomination to the House of Elders by the President of India is an act against all ethics mentioned in the Constitution of India. Since this writer is no authority on the Constitution, let the experts discuss the issue and quote the relevant portions from the Indian Constitution which show beyond doubt that Gogoi has cocked a snook at the founding fathers’ vision.
Those who support Gogoi point out that there were instances of retired judges of the Supreme Court getting nominated to the Rajya Sabha in the past and there is nothing “official” about the former’s decision to take up the offer of the Government of India.
Given Gogoi’s extensive knowledge and experience of the law, he does qualify to be a notable who can contribute valuably to the Upper House. Also, he is not the first retired Chief Justice to have benefitted from the executive’s generosity. There have been others like him who have propped up by several regimes as a reward for services that were “friendly” to them. There’s enough counter-logic going around as to how Justice S Fazl Ali was the first Supreme Court judge to be made Orissa Governor in 1952 and was the beginning of the Congress’ endorsements of judicial luminaries that continued till the party was in power.
From Assam itself, there’s the example of Justice Baharul Islam, who began as an advocate in the Assam High Court in the early 1950s and went on to serve a decade-long term as Rajya Sabha member.
As far as controversial rulings go, then the Congress suitably accommodated former Chief Justice Ranganath Misra, who gave a clean chit to the Rajiv Gandhi-led Congress in the 1984 anti-Sikh riots case. After his retirement, he was made the first chairman of the National Human Rights Commission (NHRC) and was even elected to the Upper House on a Congress ticket in 1998. The examples are so many that at one time, there was much debate over how judges should not be encouraged to take up the offer of the Government’s post-retirement benefits, like heading commissions of inquiry, simply because that could cloud their impartial judgments and colour their opinions in sensitive cases.
One wonders, why then is there such discomfort over Gogoi’s induction in the Rajya Sabha? Is it that there’s much criticism of Gogoi because he was at one time considered a “rebel” judge and, therefore, now looks like a test case of how the institution of the executive superseded that of the judiciary and a one-time warrior appeared to have fallen in line? For the uninitiated, Justice Gogoi and three of his brother judges shot into national prominence on January 18, 2018, when they staged a press conference in the national Capital, which was described as extraordinary by the “pundits” in the media. The judges cautioned the nation by giving “advance information” about the threat faced by the nation and the judiciary. Gogoi had specifically made a reference to the selective allocation of sensitive files. Therefore, there was a sense of expectation built around him, one of them being that he would ensure the independence of the judiciary. The four senior-most judges of the apex court led by Gogoi warned that democracy was in peril. “Unless this institution of the Supreme Court is preserved, democracy will not survive in this country,” warned J Chelameswar, a colleague of Gogoi, during the press meet, who, too, has retired.
I remember many Opposition leaders waxing eloquent on the four judges who held the extraordinary press conference. Immediately after the meet, a Left leader went to the residence of Chelameswar (through the back entrance).
Nothing discernible happened after this extraordinary washing of dirty linen in public. The then Chief Justice of India Dipak Misra retired on October 2, 2018, and Ranjan Gogoi was sworn in as the new Chief Justice. The rebel judges or the “young Turks” of the Supreme Court retired one by one and all are living happily ever since.
People living in South India are not fortunate enough to get the latest news on the “palace intrigues” taking place in the power corridors in New Delhi. Gogoi retired on November 17, 2019 and Sharad Bobde was sworn in as the new Chief Justice of the country. This is an ongoing process as the judiciary, too, works on the principle “me today, you tomorrow.” Justice Bobde, too, would be retiring once he reaches the magical figure of 65, the age for superannuation.
The issue is whether the former Chief Justice of India was right in accepting the Rajya Sabha nomination offered by the President of India so soon after his retirement. Well, there are no records to show that Gogoi was even remotely connected with any political party till the day he retired from service. He is the son of KC Gogoi, former Chief Minister of Assam who was a Congress leader. Ranjan Gogoi’s career at the Bench began in 2001 when he was appointed as a judge of the Guwahati High Court in 2001 and culminated with his appointment as the country’s 46th Chief Justice in 2018. But there were many legal wizards in the Supreme Court who had stints in politics before their elevation to the Bench and till this day one is yet to hear about the ethics practiced by these gentlemen.
VR Krishna Iyer, a noted judge who became a pioneer of judicial activism in India and has ever since been eulogised for his concerns for human rights and the poor, was appointed as a judge of the Kerala High Court in 1968. Before entering the precincts of the judiciary, Iyer was a full-fledged politician, a Communist to be precise. He was the Home Minister in the EMS Namboodiripad-led Communist Government of 1957, which was dismissed by Jawaharlal Nehru following the liberation struggle waged by the Congress in association with the powerful Church and the Muslim community. It was during the tenure of Iyer as Home Minister that Kerala saw the first-ever police firing on cashew company workers agitating for their rights.
Iyer, who was defeated in the next Assembly election, was elevated to the Bench in 1968 at the instance of Namboodiripad. This has been mentioned by Iyer himself in his autobiography Wandering in Many Worlds (Longman Pearson 2009). “EMS Namboodiripad sent his Cabinet colleague, Gouriamma, to persuade me to accept the offer. She pleaded that State power was a necessary tool for transformation of India into a socialist republic. She pressed home this point and left,” writes Iyer on page 159. The book hit the shelves across the nation in 2009 and Gauriamma is yet to react to what Iyer has written.
The Communists and the Congress were hands in glove, though it was invisible to most. Iyer’s was not a one-off inclusion of a professional politician into the Bench. We have the case of Kurian Joseph, who as a student of the Sree Sankara College, Kalady was the leader of the student wing of the Kerala Congress (Mani), and had the backing of the party all through his career. He was one of the judges who took part in the “extraordinary press meet” along with Gogoi to warn the nation that democracy was in danger.
Joseph has reportedly said that Gogoi compromised the noble principles of the independence and impartiality of the judiciary by accepting the nomination to be a MP. “According to me, the acceptance of nomination as member of Rajya Sabha by a former CJI has certainly shaken the confidence of the common man on the independence of the judiciary, which is also one of the basic structures of the Constitution of India,” Joseph has been quoted as saying.
Let’s accept what Joseph has said about Gogoi, but we have had many judges and Chief Justices in the past, who, had no hesitation in accepting the crumbs thrown at them post-retirement. Joseph’s predecessor from Kerala, KG Balakrishnan, had no qualms in accepting the post of the Chairman of the NHRC. There are many judges who retired from the Bench who later took up political postings offered by the parties in power. HR Gokhale, Baharul Islam are just some of the names that come to the mind. We cannot expect every judge to be like MN Venkatachaliah and SH Kapadia, synonyms for justice and propriety.
(Writer: Kumar Chellappan; Courtesy: The Pioneer)
The Preamble to our Constitution and Articles 25 and 26 dealing with freedom of religion guarantee equality to all individuals and groups irrespective of their beliefs
American statesman and prominent attorney Daniel Webster once said, “Justice is the greatest interest of man on Earth. It is the ligament which holds civilised beings and a civilised society together.” We, the people of India, were gifted with one of the most significant Constitutions ever written, on January 26, 1950 and are fortunate to have our freedoms and rights acknowledged and defined in it. The framers of the Constitution recognised that people have inherent fundamental rights that are inalienable and constitutionally-enforceable through courts, subject to reasonable restrictions. They are universally recognised and include the right to equality, freedom of expression, freedom of conscience and religion and the right to approach courts to enforce them. These rights are contained in Part III of the Constitution. Part IV deals with the Directive Principles of State Policy that act as instruments of instruction for the implementation of fundamental rights in Part III.
Unlike the Indian Constitution, the American Constitution written in 1787 was probably flawed at first. It did not have a written provision or a “Bill of Rights” which guaranteed protection of fundamental personal freedoms and rights of its citizens. Seeing the need for it Thomas Jefferson argued that the people were entitled to it against every Government on the planet and “no just Government should refuse a Bill of Rights to its people.” After that, in 1791, the “Bill of Rights” was introduced in the US Constitution by the first ten amendments and it prohibited the Congress from making any law which impedes the free exercise of religion, speech, right to peaceably assemble and the right to a fair trial and several other personal rights of individuals.
According to Justice Sandra Day O’Connor in the “Bill of Rights”, the framers of the American Constitution built a wall around certain fundamental individual freedoms, forever limiting the majority’s ability to intrude upon them. Fundamental rights are recognised in every civilised nation and are founded on the rule of law which no law can deprive its citizen of, in a civilised and secular society.
Justice Patanjali Sastri in the AK Gopalan vs State of Madras case in 1950 noted that Part III forms a new feature of the Constitution and it is the Indian “Bill of Rights.” It is modelled on the first ten amendments of the American Constitution which declare the fundamental rights of US citizens.
The rule of law and secularism are at the heart of the Indian Constitution and Indian laws. The rule of law assures us of equality before it and equal treatment of laws, liberty, dignity, personal freedom and the right to life. The Preamble to our Constitution and Articles 25 and 26 dealing with freedom of religion guarantee equality to all individuals and groups irrespective of their beliefs. They also emphasise that there is no religion of the State itself. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme of the Constitution as noted in the M Ismail Faruqui vs the Union of India case.
There may be times when the Government must be reminded about the rule of law and secularism as reflected in our Constitution. Recently, a statue of Lord Jesus and 14 crosses portraying events in the Passion of Christ, from his condemnation by Pontius Pilate to his entombment, were removed from a cemetery in Karnataka near Bengaluru by the district administration. It was alleged that the church was encroaching on public land and involved in forcible conversions. The church says that the property was being used on the basis of a valid Government sanction for several years. The church also says that the statue and the crosses were removed at the behest of majoritarian groups amid false accusations of forcible conversions.
The church requested the State administration to allow them to continue with their Lenten observances which they have been doing for the last several years at the cemetery. Lent is a 40-day period before the crucifixion and burial of Lord Jesus on Good Friday and his resurrection from the dead on Easter Sunday, that is observed by Christians by fasting and praying. The belief in the crucifixion and resurrection of Lord Jesus is the central belief of Christianity. The church says that the removal of the statue of Christ and the 14 crosses is illegal as the land was sanctioned for a Christian graveyard and they have the documents to prove it. They say that the State administration showed undue haste to remove the statue and crosses and could have at least waited till after Easter and not obstruct the religious observances that have been going on for several years.
There are other incidents when Christians have wrongly been accused of forcible conversions. In 2017, eight Christians were intercepted and arrested on charges of forcible conversion under the Madhya Pradesh Freedom of Religion Act and kidnapping under the Indian Penal Code. They were travelling for a Bible camp along with 60 children from Madhya Pradesh to Nagpur. After a long and arduous trial, a court in Madhya Pradesh acquitted the eight Christians in February, as they were proved innocent of all charges. Increasingly, churches are targetted by mobs and their Sunday services disrupted. Disturbingly, more often than not, no action is taken against the attackers. However, the pastors and church leaders are assaulted and are arrested and accused of forcible conversion. In 2015 in Jhajjar, Haryana, Sunday services in one church were stopped by the district administration on account of a procession and puja which happened to be taking place near it. The district administration did not respond to the pleas of the church to allow the members to worship.
However, the administration hastily withdrew its illegal order as soon as the church approached the Punjab and Haryana High Court. The court directed the State to provide adequate security as and when required, especially when the church services were in progress. The church was allowed to function as per the fundamental rights guaranteed by the Constitution and the established principles of the rule of law.
States such as Madhya Pradesh, Odisha, Chhattisgarh, Gujarat and Himachal Pradesh have Freedom of Religion Acts which are also referred to as anti-conversion laws. These laws rightly prohibit religious conversions by force, fraud and inducement. Some of these State laws have been in existence for more than 50 years in Madhya Pradesh and Odisha and there have been many false convictions under these laws. It appears that such laws only serve the purpose of intimidating and harassing Christian pastors and not others who indulge in conversions and forced re-conversions. Such Acts impede on the rights of Christians only and are being used to threaten religious leaders and congregations even in States where no such laws exist. Accusing church leaders and pastors of forceful conversion has become a convenient method for the perpetrators of crimes against Christians, to assault and silence them, just like the dreaded Blasphemy law in Pakistan is used against minorities. The anti-conversion laws only promote communal hatred and do not subserve any Constitutional purpose and are a blot on our democracy. All citizens of India are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion as contained in Article 25 of the Constitution.
The Government must be reminded of its duty, as reflected in the observations of the Supreme Court in the State of Karnataka vs Praveen Bhai Togadia case which said that secularism is not to be confused with the communal or religious concept of an individual or a group of persons. It means that the State should have no religion of its own and no one could proclaim to make the State have one such or endeavour to create a theocratic State. Each person, whatever be his religion, must get an assurance from the State that he has the protection of law to freely profess, practice and propagate his religion and freedom of conscience.
The anti-conversion laws are impeding the rights of the Christian minority and must be repealed. The abrupt removal of the statue of Lord Jesus in Karnataka and the promptitude with which the administration acts to appease groups who accuse pastors of forcible conversion are a few real incidents of a travesty of justice and the misapplication of laws. The anti-conversion laws are an antithesis to the rule of law and must be struck down from the statute books.
(Writer: Robin David; Courtesy: The Pioneer)
The former CJI’s nomination to RS is not surprising but raises questions on propriety and independence of judiciary
Ostensibly, there is nothing technically wrong with ex-Chief Justice Ranjan Gogoi accepting a presidential nomination to become a Rajya Sabha member. Given his extensive domain knowledge and experience of the law, he does qualify to be a notable who can contribute valuably to the Upper House. He is, in the end, somebody who has excelled in society in his chosen field. There’s no shortcoming there. Also, he is not the first retired Chief Justice to have benefitted from the executive’s munificence; there have been others propped up by several regimes before him as a reward for services that were “friendly” to them. If whataboutery is the logic, he can quote precedence. And we know he knows his law. There’s enough counter-logic going around as to how Justice S Fazl Ali was the first Supreme Court judge to be made Orissa Governor in 1952 and was the beginning of the Congress’ endorsements of judicial luminaries that continued till the party was in power. From Assam itself, there’s the example of Justice Baharul Islam, who began as an advocate in the Assam High Court in the early 1950s and went on to serve a decade-long term as Rajya Sabha member. As far as controversial rulings go, then the Congress suitably accommodated former Chief Justice Ranganath Misra, who gave a clean chit to the Rajiv Gandhi-led Congress in the 1984 anti-Sikh riots case. After his retirement, he was made the first chairman of the National Human Rights Commission and was even elected to the Rajya Sabha on a Congress ticket in 1998. The examples are so many that at one time, there was much debate over how judges should not be encouraged to take up the offer of the Government’s post-retirement benefits, like heading commissions of inquiry, simply because that could cloud their impartial judgments and colour their opinions in sensitive cases. Why then is there such deep discomfort about Gogoi’s induction in the Rajya Sabha, that, too, in a position that is much lower than the Chief Justice of India? Is it because of the immediacy of the appointment, barely allowing for a cooling off period, one that would not have led to deductions that he was being rewarded for favourable judgments, be it in Rafale or Ayodhya? Or is it because of a lack of pretence and propriety in the face of the ruling BJP’s brazenness in protecting its favourites?
Yet nobody is holding the party to account simply because it is doing what the Congress did for so long. But there’s much criticism of Gogoi because he was at one time considered a “rebel” judge and, therefore, now looks like a test case of how the institution of the executive superseded that of the judiciary and a one-time warrior appeared to have fallen in line. Remember the time when Gogoi — then the seniormost after the then Chief Justice Dipak Misra – held a press conference in January 2018 to express concern over the arbitrary manner in which Misra was running the top court? He had specifically made a reference to the selective allocation of sensitive files. Therefore, there was a sense of expectation built around him, one of them being that he would ensure the independence of the judiciary. There was faith he would not be coopted by an executive that was backed by a mammoth electoral verdict and could heave upon reasoned judgment calls as not being in sync with the times. Subsequent judgments have replaced the crusader halo with a shadow. For somebody who spoke against the roster system of his predecessor, he was seen as ensuring the Government line held ground in most politically-sensitive cases. Perhaps, Gogoi could have got some of his old glow back had he refused such an offer, knowing full well that he was landing himself in another controversy. Nobody better than him knows that Rajya Sabha nominations are quid pro quo for services rendered to the regime of the day. He perhaps could have waited to take up some national-level commission instead and not seemed so desperate. But Gogoi justified his acceptance saying, “It would be an opportunity to project the views of the judiciary before the legislature and vice versa.” He could argue that this being a presidential nomination, he was, again technically speaking, independent of political affiliations and could act as the “conscience keeper” of the nation. Perhaps, he wants to retrospectively decide to be true to his oath and “bear true faith and allegiance to the Constitution” and perform duties “without fear or favour.” Only time will tell whether he scores a moral victory by trying to fight the challenging circumstances of politically charged times as a respected citizen of India. Or whether we are judging him too harshly for eroding an institution.
(Courtesy: The Pioneer)
Quilting has not only become a powerful way to advocate change around the world, it has provided a healing touch to marginalised sections of society as well
In 2014, four years before the Supreme Court of India decriminalised homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional in respect of consensual homosexual sex between adults, a group of people belonging to the LGBTQI community in Chhotaudepur, decided to step out of the shadows. Instead of using street protests to voice their opinions, the Gujarat-based group adopted a unique way to advocate their rights. With many of them being henna artists, the group used their artistic skills to design and stitch a patchwork quilt. Christened the “Henna Pride” advocacy quilt, their labour of love has since been taken around the world for creating awareness about the lives, trials and tribulations of its makers and for raising the issue regarding liberty for all communities, irrespective of their gender and sexual orientation.
Exhibited at the 2019 summit of the International Conference on Population and Development (ICPD+25) in Nairobi, the quilt drew attention to the challenges members of the LGBTQI community face in advancing their sexual health and reproductive rights, despite gains like the Supreme Court’s landmark judgment.
Quilting has not only become a powerful way to advocate for change, it has provided a healing touch as well. Making the “Henna Pride” quilt was particularly liberating for the team from Vadodara-based Vikalp, a not-for-profit organisation that works with tribal and transwomen, as homosexuality was considered a crime in India at the time.
“The whole process of coming together to make the quilt was empowering,” says Maya Sharma, co-founder of Vikalp. “They didn’t have a voice and finding that voice was important. The quilts gave them a sense of purpose and represented the change that happened within, just by coming together. Just the process of sharing their experiences helped transform their lives. Each of them developed their potential,” explains Sharma.
Life for Payal, a 30-year-old transwoman took a turn for the better after the quilting project began. A male by birth, Payal prefers to be called that and not Mukesh, the name given by his family. He joined Vikalp to be with like-minded people and was chosen to contribute to the “Henna Pride” quilt because of his talent as a henna artist. Although Payal is one of the few educated, young tribals in his village, he had not been able to garner enough support to effectively combat stigma and discrimination. But joining hands with others like him boosted his confidence and self-belief. Today, he is the leader of a group and helps young people in tribal areas around his village live a dignified life. Now, there is greater freedom to dress and feel like a woman and to dance and celebrate without facing any backlash.
Payal’s colleague, Dakshaben, who joined Vikalp nearly 15 years ago, has become a journalist in a small newspaper. Dakshaben, a survivor of domestic violence, initially worked at women’s courts in Tilakwada to arbitrate cases of women like her, who were exploited and battered by their husbands. She brought a gender perspective to the quilting process, having been an outreach worker and possessing deep knowledge of her tribal community.
For Anika, a sex worker, quilting gave her the chance to overcome stigma and understand that she, too, had human rights. Today, she is much more aware of her constitutional rights and has begun to take her own decisions.
Much of this transformation was made possible because of the efforts of the Advocacy Project (AP), a global not-for-profit organisation that helps marginalised groups tell their stories and become agents of change. AP collaborated with Vikalp to use the quilt- making process to help the group.
“The Advocacy Project uses embroidery and quilting as a tool for therapy, rights awareness and advocacy. Funded by the United National Population Fund to train women, AP connects the artists with professional quilters to produce stunning advocacy quilts. Then they are exhibited to a larger global audience to push for social change,” says Karen Delaney, Deputy Director, AP.
Interestingly, the process of quilting has also brought change in the lives of professional quilters like Bobbi Fitzsimmons. Little did Fitzsimmons realise that her life would change when she engaged with the project some years ago. Fitzsimmons, who was present at the Nairobi Summit where AP presented 18 quilts from 14 countries, narrated how the project helped her gain confidence to move on in life.
While working in Nepal to create two quilts with women who lost family members during the civil war in the country, Fitzsimmons was able to overcome the trauma of her own loss. “The quilts are both memorials to those who disappeared and dramatic reminders to the Government that each block represents people whose lives were torn apart by their loss,” she says.
Fitzsimmons was also involved in helping to make the Kenya Cow quilt presented by Children Peace Initiative Kenya (CPIK). This quilt showcased how cows and children played a role in bringing peace between warring tribes in north-west parts of the country.
Salaiton Lenguris and Joyce Leiririo, mothers of some of the quilters from Kenya present at the summit, pointed out how freedom from conflict had given them a chance to become economically independent. Lenguris stated that the quilts portrayed how drought forced pastoralists to take their cattle into the grazing grounds of other tribes, triggering a conflict. It also showed how children became the torchbearers of peace.
The Children Peace Building Programme came about after the CPIK decided to use them as the primary actors in the peacemaking process. “The idea is that children are not just victims of conflict; rather, they are the bridges of peace in their families and communities that can combat and resolve inter-ethnic conflicts,” contends Samson, programme officer, CPIK.
Under this programme the CPIK brought children of the warring Samburu and Pokot tribes together and engaged them in a series of activities that enabled them to become friends. Once the children became friends, their families ended hostilities. Various activities over the past three years, including a five-day peace camp for the children, helped them become agents for reconciliation between their tribes. This peace was sealed by gifting two families one heifer. Once the heifer gave birth the calves were distributed among them, thus ending the perennial conflict over livestock.
Lenguris and Leiririo were among the first from the Samburu tribe to become friends with mothers and children of the Pokot tribe. No fighting has been reported between the two tribes for some years now.
Now that there is peace, the mothers have been able to make use of their quilting training to make more quilts and the sale of their products has given them economic freedom as well.
“Besides getting the opportunity to come together, we gained skills that can be used to generate income for the rest of our lives. So, for the first time, we have the resources to look after the health of our children and families. This is why these quilts have become so important for us,” says a contented Lenguris.
(Writer: Swapna Majumdar ; Courtesy: The Pioneer)
SC clears foreign funding for voluntary bodies crusading for public causes and civil rights
In a breather in these hyper-choked times of regulated democracy and a big relief to rights-based groups, the Supreme Court has ruled that the Government cannot stop foreign funding of non-governmental organisations (NGOs) that fight citizens’ causes through democratic means. In other words, it spares them from being punished for dissent or protest over declared Government policies that impinge on human rights. Further, it grants them the constitutional right to be heard and conduct their campaigns fairly without fear of hitbacks or clampdowns. Through its consecutive regimes, the Narendra Modi Government has often run down civil rights movements as a conspiracy of the West to besmirch India’s image and present a lopsided view of our rights record. Its crackdown on foreign funding of “unfriendly” non-profit organisations had led to a whopping 40 per cent fall in overseas fund flows by 2017-18, says an industry report by Bain & Co. About 20,000 NGOs were affected. The ruling is significant simply because it re-establishes the primacy of democratic practices at a time when they are under threat of being stifled. The court said that curtailing an NGO’s right to access foreign donations was in violation of the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(c) of the Constitution relating to free speech and peaceful protests. Ending two contentious provisions of the Foreign Contribution Regulation Act (FCRA), 2010, that allowed the Government to clamp down on all dissent and critiques, the court held that if an NGO was not pursuing a political goal or objective, it could not be penalised for supporting public causes through demonstrations and strikes. In other words, the anti-CAA or student protests cannot be legally classified as being foreign-funded. The ruling also ends confusion over what qualifies as “political interests”, an amorphous code that the Government had been using to disqualify movements or groups opposed to it. Earlier, Rule 3 (vi) of FCRA was categorical that any NGO, which used common protest methods like strikes, shutdowns, sit-ins, demonstrations, rail roko or jail bharo agitations in support of public causes, could be declared as an organisation of a “political nature.” This provision gave the Government unguided and limitless powers to label any organisation it didn’t like as mischievous in intent and cancel its foreign funding. Now, as per the court order, the Centre is required to take into account the activities and ideology of the NGO, including its association with activities of any political party, before declaring it as an organisation of “political nature.” While hitting out at the Government, the apex court also restricted other political parties from having front organisations and funnelling funds, saying such outfits would not escape the rigour of the Act if evidence was strong enough.
Many civil society bodies, including the Indian Social Action Forum, TARSHI Delhi, Ford Foundation, Greenpeace India, Amnesty International India and the Centre for Social Justice, have been fighting against the “abuse of legal procedures” and “the use of the FCRA as a tool of repression.” Even India’s top human rights watchdog, the National Human Rights Commission, had issued a notice to the Home Ministry on the issue in 2018. Still, it cancelled the licences of those engaged in rights-based advocacy work. The Home Ministry had time and again justified these actions, saying it had no place for bias but was just focussing on technical violations of the FCRA. Incidentally, the original FCRA came into force in 1976 during the Emergency of the Congress era and prohibited MPs, electoral candidates, political parties, judges and media organisations from accepting foreign contributions. However, the FCRA was amended by the Finance Bill 2016 and those changes made it more severe than its predecessor as it targetted “organisations of a political nature.” The new law also put a 50 per cent cap on the proportion of foreign donations, thereby controlling the way NGOs spent their money and made it mandatory for them to renew their licence every five years. This gave the Government the power to decide whether an NGO could renew its licence or not. In its continued onslaught, the Government had also cut short the term of Nachiket Mor, the country director of Bill & Melinda Gates Foundation, from the RBI’s central board after the RSS-affiliated Swadeshi Jagran Manch lobbied for his removal. As the Central bank oversees funding for NGOs coming from abroad, Mor was believed to act as a facilitator of liberal interests rather than being a proponent of Government agenda. However, thanks to the judiciary, once again the democratic right to freedom of expression will remain alive and kicking.
(Courtesy: The Pioneer)
While the SC pulls up the police, the Delhi HC seeks action on FIRs against BJP leaders spewing hate rhetoric
This has now become quite the norm in this country, the judiciary not only becoming the voice of reason in our collective heads but telling the executive what it knows but chooses to forget all too conveniently according to political imperatives. First, it was the Supreme Court, which rapped the Delhi Police for its failure to control violence and allowing the situation in north-east Delhi, arising out of protests over the citizenship law, to drift. Second, the Delhi High Court, too, shamed it and cautioned the authorities to remain alert so that the carnage of the 1984 anti-Sikh riots was not repeated. It further sought registration of FIRs in all cases related to hate speeches and pulled it up for not acting against BJP leader Kapil Mishra.
The top court came down hard on the police, lamenting its lack of professionalism and shaming it for waiting to take orders from the powers that be. No matter what, the court chided, it could not hide under the fig leaf of acting under the Government’s direction and not dispense its basic, clinical duty, that of maintaining law and order. Undoubtedly, Delhi police has a tough balancing act to do, considering the fact that unlike other forces in the country, which report directly to the respective State Governments, it has to take orders from the Ministry of Home Affairs. But is the mandate to toe its political master’s choice above its duty to keep the peace? One of the principles of good policing is that the forces should function without any fear and favour, which they haven’t. The failure of the top brass, too, in guiding junior colleagues and building their preparedness to face a riot-like scenario is all too apparent. With Amulya Patnaik’s tenure coming to an end this month, his successor SN Shrivastava, who will take charge as the Delhi Police chief early next month, has a grave challenge ahead: To neutralise the criticism, instill a sense of purpose and impartiality within the men in uniform and win back the trust of the community, which at this point of time is non-existent. The police has to appear to be above board and with images and videos in a digitally aware society, it has been seen as nothing but a wimp. Even in the latest bout of violence, the police failed to deploy its existing strengths optimally despite clear signs over the last three days that they would be needed in large numbers. Yet its active involvement in the violence speaks volumes about it being tardy and directionless in its approach. Excuses for the lack of preparedness would be far-fetched for in the present case, the BJP leader, whose provocative words were the turning point in protests becoming violent, issued an ultimatum right in front of a senior police officer. An armed man had the gumption to confront an unarmed police officer, intimidate him and force him back with his hands raised before he fired a few shots in the air. This acquiescence to a member of a Central ruling party seems shocking considering that the same force had barged into the premises of a hostel library, hunting down students with the use of lathis and tear gas, just because they represented dissent. It is this partisan conduct of the police that has sent the wrong message to lumpens who feel emboldened by the fact that they stand protected because of their ideology and the party they represent. Before the recent clashes, the Delhi police has been fairly consistent in its crackdowns, be it at Tees Hazari during the lawyer-police clashes, at the Jamia Millia Islamia University, Shaheen Bagh and the Jawaharlal Nehru University to name a few. So it cannot claim a defanged status now. Given the pathetic state of affairs in public administration and the feeble claims of the police, the top court’s anguish is understandable. Which is why it deferred hearing the plea for shifting the Shaheen Bagh protesters until March 23. In doing so, it has given the executive a chance at dialogue and resolving the situation by simmering down tensions. This brings into the picture the role of the Government in containing inflammable situations that cost human lives. No matter how many reforms are brought about in the police force or how much the overhaul, the executive must have the political will to steer the discourse amicably. A confrontationist approach works only when you are in the Opposition party and not when you are in governance. The BJP has lost Delhi for sure but it cannot cry over spilt milk. If indeed it wants to contain the damage done to its declared intent, then it must attempt a dispute resolution rather than passing on that agency to the courts. No citizen wants a Government which has to be sermonised. Every citizen expects a Government to be responsive, not abrasive.
(Courtesy: The Pioneer)
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