Copyright and trademark infringement do happen on the Internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the Internet. Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured; Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discuss it in some degree, yet don’t address the ruin caused by online infringements.
With the advent of newer technology and advancement in the mode of communications, the internet has become an essential part of our lives. The benefits of cyber technology are immense and many facets of modern life are completely dependent upon it; however, at the same time, in the wrong hands it can be more dangerous than a nuclear weapon. Crimes are no longer confined only to the physical space but have also entered the digital, as cybercrime. Cybercrime or computer-oriented crime, is one that involves a computer and a network. All the rapid advancements of internet and related crimes were needed to be regulated and therefore accordingly a new branch of jurisprudence emerged to tackle the problems of cybercrimes in cyber space i.e. Cyber Law or Cyber Space Law or Information Technology Law or the Internet Law.
The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Electronic Commerce in 1996 and for the first time extended its efforts towards bringing uniformity in the laws of different countries. The General Assembly of the United Nations by Resolution No. 51/162 dated 30th January 1997 recommended that all States should give favourable consideration to this Model Law when they enact or revise their laws. The Model Law provides for equal legal treatment of users of electronic communication and paper based communication. The Information Technology Act, 2000 [hereinafter referred to as, “IT Act”] is also in consonance with the Model Law.
The IT Act, 2000 was passed by parliament on 15th May 2000, approved by the then President, on 9th June 2000 and enforced on 17 October 2000. It amended the following four Acts in the Indian legislation with its introduction: The Indian Penal Code, 1860; The Indian Evidence Act, 1872; The Bankers’ Book Evidence Act, 1891; and The Reserve Bank of India Act, 1934.
It is not only applicable to offences within India but also to offences and contraventions outside India (section 1(2)) and section 75 of the IT Act). Later on, the IT (Amendment) Bill, 2006 was introduced and passed in the Lok Sabha and amended the IT Act, 2000 by the Information Technology (Amendment) Act, 2008.
What were the objectives?
The then Minister of Parliamentary Affairs and Minister of Information Technology, Shri Pramod Mahajan, during the discussion on the Information Technology Bill, 1999 talked about the absence of a suitable law in India to deal with tampering of computer source documents, publishing information which is obscene in nature and issues relating to damage to computers and computer networks through a system of appropriate penalties and punishment. In furtherance of the same and making the law in tune with the Model law on e-commerce adopted by the UNCITRAL, the IT Act, 2000 came to life.
It is the enactment of the IT Act that provided legal recognition to transactions carried out by the means of electronic communication and has not only facilitated the electronic filing of documents and/or applications with the government but has also assisted and encouraged the use and acceptance of electronic records and digital signatures in government offices, making interactions between the government and civilians smooth and quick.
The government set up an expert committee to review the IT Act in January 2005. The committee comprised of representatives from the government, IT industry, legal experts etc. It found substantial lacunae in the existing Act and submitted its report in August 2005. It was noted that a lot of changes were required to the existing IT Act, 2000 because of the developments internationally and nationally especially in the area of the data protection and privacy. They observed that the field of cyber laws is a nascent area and experience of its formulation and implementation is still evolving worldwide and more so in India.
After due consideration and deliberation, the committee recommended that the IT Act should be technology neutral. It revisited the provisions related to data protection and privacy and proposed stringent provisions for handling sensitive personal data. The committee addressed the issue of liability of intermediaries and suggested amendments using the European Union Directive on E-Commerce as the guiding principle. It suggested severe punishments to prevent child pornography and also made recommendations on computer related crime and electronic evidence.
Later, the Information Technology (Amendment) Bill 2006 was introduced in Lok Sabha on 15th December in the year 2006. It was then referred to the standing committee on 19thDecember 2006. Further a report was submitted by the standing committee on 7th September 2007. The amendment Act was passed in the Lok Sabha on 22nd December 2008 and consequently in the Rajya Sabha on 23rd December 2008. The final assent was given by the President on 5th February 2009.
Highlights of the Information Technology (Amendment) Bill, 2018
Section 67BA is inserted by the Bill stating that whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is repugnant to well established cultural ethos, that person shall be punished on first conviction with imprisonment of either description for a term which may extend to six months and with fine which may extend to two lakhs INR.
Also, with respect to online gaming specifically, sections 67BB and 79B are inserted. Section 67BB states that whoever hosts any online game, which induces the users to commit any dangerous act which is harmful or any act that may cause injury or an illegal act, shall be punished with a maximum punishment of one year and fine which may extend to two lakhs and in the event of second or subsequent conviction, with imprisonment of either description for a term which may extend to three years and also with fine which may extend to five lakh rupees. Games such as the ‘Blue Whale Challenge’ have been said to inflict injury on a number of individuals, also in some cases, resulting in suicidal acts. This game in particular has gained a huge fan base in India among children leaving to a number of deaths and cases of depression amongst children.
Section 79B states whoever hosts an online gaming resource or produces any storage media containing a gaming resource to be sold offline, shall ensure that the game resource is categorised for use by appropriate age group on the basis of game contents; and there is a suitable mechanism within the game resource to warn the users against repeating the dangerous acts, if any, shown in the game in their real lives.
The IT Act has been quite useful in setting up the guidelines to settle the disputes pertaining to the internet/digital domain but specialists have also opined that the Act is a toothless legislation and has not been totally compelling in issuing punishments to the culprits. There are surely territories of digital laws which needs consideration. Some of the areas which could be worked upon includes:
Spam might be characterized as unsolicited bulk e-mail. At first, it was seen as a negligible irritation however at this point it is presenting major economic issues. Without sufficient specialized technical protection, stringent legislation is required to manage the issue of spam. The Information Technology Act does not talk about the issue of spamming. The USA and the European Union have authorized anti-spam legislation. Australia has exceptionally stringent spam laws (Spam Act, 2003) under which spammers might be fined 440 dollars per contravention for an individual with a maximum penalty of 22,000 dollars for a single day. Phishing
Phishing is the procedure of endeavouring to secure sensitive data, for example, usernames, passwords, and credit card details, by taking on the appearance of a dependable element in electronic correspondence. Phishing is ordinarily done by email and frequently guides clients to enter individual and financial details at a site.
There is no law against phishing under the Information Technology Act. Though the Indian Penal Code discusses duping, it isn’t adequate to check phishing. Recently, a phishing assault was seen on the clients of State Bank of India wherein a clone of the SBI site was utilized. What is more regrettable is that even SBI has not alerted its clients. So there is need of an enactment that prevents phishing in India.
Information Protection in Internet Banking
Users are assured by banks that their information will be kept confidential, however, the web banking system includes banks and their clients; but may also involve various outsiders as well. It is outdated for banks to hold data inside their very own computer systems. India currently has no laws on information insurance and therefore the risks associated with altering of personal information is pretty high.
The Information Technology Act discusses access; however, it does not discuss keeping up the integrity of client exchanges. The legislation does not set out any obligation upon banks to secure the details of clients and customers. U.K had an Information Protection Law enacted in 1998 which is repealed by the enactment of the General Data Protection Regulation (GDPR) under which banks or any individual holding sensitive data might be held liable for damages in the event of it neglecting to keep up satisfactory security protection in regard of information. In India, a bank’s obligation would be out of agreement as there is no resolution on the point. Cyber War
The issue of cyber war has not been talked about in the Act. India, as of late, has confronted various digital assaults from programmers outside of India who penetrated through the Indian firewalls. In the 26/11 attacks of Mumbai, various characterized information was given as intel to the culprits from other countries planning attacks against India. There are no arrangements in the Act to make such culprits liable for their activities.
Almost all cyber-crimes, barring a couple, are bailable offences under the IT (Amendment) Act, 2008. The quantum of civil liability is sought to be enhanced in the Act, while the quantum of punishment is reduced due to which convictions in cybercrime is very low.
Intellectual Property Infringement
The most widespread digital “abuse” that an individual makes these days is downloading motion pictures through distributed sharing systems. This is a widespread infringement of copyright laws; however, the numbers of culprits are so large that a successful measure cannot be taken to check it. So, to check the developing threat of digital violations, government through measures frequently deny access to sites. This has been contended to be a draconian measure and a violation of the right to speak freely and articulation under Article 19(1)(a).
Copyright and trade mark infringement do happen on the internet, yet the Copyright Act, 1957, or Trade Mark Act, 1999 which explicitly manages infringements, is quiet on the issue. In this way we have no implementation apparatus to guarantee the protection of domain names on the internet.
Transmission of e-money and exchanges online are not given protection under the Negotiable Instrument Act, 1881. Online security isn’t ensured just Section 43 (penalty for damage to computer or computer systems) and Section 72 (Breach of confidentiality or privacy) discusses it in some degree yet doesn’t address the ruin caused by infringements caused over the internet. Indeed, even the Internet Service Providers (ISP) who transmit some outsider data without human mediation isn’t made liable under the Information Technology Act, 2000. One can undoubtedly take cover under the exclusion condition on the off chance that the ISP demonstrates that it was submitted without his knowledge or that he practiced due perseverance to counteract the offense.
With the internet saturation on a rise in India, the evil of online piracy is growing at an alarming rate, and to fight with the problem of piracy, the Government of India was compelled to issue the Information Technology (Intermediaries Guidelines) Rules, 2011 which mandate an intermediary to observe due diligence while discharging its duties and not knowingly host or publish any information which infringes the Intellectual Property Rights of anyone. But the guidelines would not stop the piracy because of the vastness of the domain. Most of such records are made available on different websites, on or before the date of release. When a record is uploaded on the internet, it opens the floodgates for the masses to download it, thereby, causing heavy losses to the creators. The most difficult thing in the current piracy world is that the person who uploads such records on the internet is unknown to the world. Therefore, preventive action in the nature of ‘John Doe orders’ or Ashok Kumar orders has become significant globally to prevent intellectual property right infringements.
Suggestions and the Way Forward
When I look at the IT Act today, I strongly feel for the modernization of existing laws and enactment of new ones. Maybe it is time we need specific laws on Social Media, Fake news, and eCommerce. Often, we witness the application of two different legislations such as the IT Act and the IPC in a particular scenario. The decision of the Hon’ble Supreme Court in Sharat Babu Digumarti v. NCT of Delhi was followed by the Bombay High Court in Gagan Harsh Sharma v. The State of Maharashtra, holding that when an offence is sufficiently covered under the provisions of the Information Technology Act, 2000, the IT Act will apply as lex specialis to the exclusion of the Indian Penal Code, 1860. The IT Act, a later special law contained overriding provisions over IPC, a general law. Majority of the offences under the IT Act are bailable and compoundable and may also lead to amicable settlement between the parties, wherein, the offence under IPC may not be bailable and can attract higher punishment. Hence, if the complainant is willing to prosecute the offender under sections of IPC, it may deprive the offender from getting bail and from the case being settled, which the IT Act permits. Along with the IPC, the IT Act also at times collides with the Copyrights Act, 1957, the Companies Act, 2013 and the Contract Act, 1872. A settled principle on this point will make the implementation of the IT Act smooth.
Moving on, the reporting of cyber-crimes should be encouraged in order to devise proper mechanisms for its redressal. According to the data analysis of cybercrime, only 50 out of 500 crimes get reported. Here, I would also like to draw the readers’ attention towards the National Cyber-Crime Reporting Portal launched by the Ministry of Home Affairs, Government of India. This portal which can be accessed on https:// cybercrime.gov.in facilitates the victims/complainants to report the cybercrime complaints online and also has a special focus on cybercrimes against women and children.
We are surely in need for a universal regulatory framework mechanism which helps in the restructuring of the substantive as well as the procedural laws relating to computer generated crimes. The problems arising due to divergence of laws and procedure of different nations may be eliminated to a considerable extent if at least major cyber-crimes are uniformly recognized and incorporated by all the countries in their penal laws.
The internet being a borderless medium has often posed jurisdictional challenges in handling of crimes especially cyber defamation. Attention should be drawn towards the multiple publication rule which means that in relation to an online material, each ‘hit’ on the website creates a new publication, potentially giving rise to a separate cause of action if it contains defamatory material. Jurisdiction in such cases may be prescribed by the principles laid down in International Law or applying the Principle of International Comity so that if there is no particular law in the country, the court can resort to the principles already established in other legal systems of the world.
The use of strong encryption technology especially in government commercial organizations that are mostly dependant on massive computerization for the transmission of transactions or sensitive information, will enable them to keep their data safe from leakage or disclosure to public or hackers.
The data landscape of India is bound to witness a sea change with the enactment of the Personal Data Protection Bill but at present the IT Act and the rules made thereunder have not even defined the term ‘encryption’. Strange, isn’t it?
The Information Technology Act, 2000 puts forward reasonable provisions for studying and examining the law and strategizing the field of cyber-crime legislations; however, the legislation falls short of strict implementation of its provisions. This suggests that no penal legislation should be left open for expansive translations, particularly concerning the digital age because the internet provides us with certain freedoms in real life which might make transgressing any law easier for us. Hence, any administrative instrument or authoritative measure must try to be exhaustive, clear and interpreted restrictively. I am keenly looking forward to a wellequipped law which caters to the age of digitization and emerging technologies such as blockchains, artificial intelligence, and cryptos.
Stay Alert and Stay SafeYou’re on the Internet!
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GOVERNANCE WILL BE THE KEY IN 2024
The havoc wreaked by the second wave of the coronavirus has kindled hopes in Opposition hearts of coming to power three years hence, in the 2024 Lok Sabha elections. They hope that people’s suffering and a broken economy will tip the scales against the incumbent government. Add to that the Bharatiya Janata Party’s inability to snatch power from Chief Minister Mamata Banerjee in West Bengal and many a dream has started being woven about which Opposition leader will occupy the Prime Minister’s chair in 2024. Needless to say, much of the push is coming from the Bengal Chief Minister, who has major Prime Ministerial ambitions—the first Bengali Prime Minister is how her party-men and women are trying to create the buzz in Bengal—and whose emissary Prashant Kishor is knocking on different doors. Hence the meeting convened by Sharad Pawar of Opposition parties this week is significant, even though the attendance was limited to those who have a paltry 30-odd MPs in a 543-member Lok Sabha. The Congress did not attend, nor did regional parties from the South, such as the DMK, TRS or the YSR Congress, all controlling states with a substantial number of seats. As expected, Odisha’s BJD too was nowhere to be seen. Of interest was the attendance of the Left parties in a meeting where the TMC was one of the main movers. This is in keeping with the buzz of the Left joining hands with the TMC in the Lok Sabha elections of 2024. There was already some push from both the Left and the TMC ahead of the elections in Bengal that the two should join hands to stop the rise of what they describe as “communal forces”. In fact, there is enough anecdotal evidence to suggest that the Left transferred a large chunk of its votes to the TMC in the Bengal elections, thus boosting TMC’s performance. It’s a different matter though that in the process, the Left disappeared from Bengal’s political firmament, but then what’s a little existential crisis when the goal is to make India truly “secular” and “liberal”? So, Bengal will not be an easy battle for BJP in 2024, although preparations for the elections seem to have already started, as evident from Suvendu Adhikari’s regular visits to New Delhi, where he spends considerable time with the BJP’s top brass, including even with the Prime Minister. But whether he can grow into another Himanta Biswa Sarma is speculation at best, especially because Bengal with its 42 Lok Sabha seats is increasingly becoming “unscalable” for BJP for reasons of demography.
Meanwhile, in all the talk about alliances and counter alliances, the small issue of track record and governance is perhaps taking a back seat. And this applies to all parties, including BJP, whose Central government has been accused of taking its eye off the ball because of the elections in Bengal and thus allowing the second wave of the pandemic to turn into a tsunami. But serious questions are being asked about Mamata Banerjee’s functioning too, for instance. The political violence that erupted in the state post the election results on 2 May is continuing, with horror stories of rape, murder, arson and loot coming to light every day. Sadly, not much of this is being highlighted by the national media, with the only saving grace being the Calcutta High Court refusing to pay heed to the state government, which wanted a stay on the National Human Rights Commission examining the allegations of violence that have come to it. If the Bengal Chief Minister has national ambitions, she should not make the mistake of thinking that these will not come back to haunt her. These incidents will be right at the heart of the BJP’s campaign against her, apart from her perceived tilt to a certain community.
It’s governance that will ultimately count for voters when deciding who will come to power in 2024. As it is a handful of leaders from diverse parties united in apparent self-interest do not make a pretty picture, and can scare away voters with the prospect of “instability”. As we have seen over the last few elections, voters have been going for clear mandates and stable governments. And then of course there is the Narendra Modi factor, which the Opposition will find hard to counter. The bottom line is, governance, apart from track record, will be the key for anyone making a bid for power in 2024.
Policy implementation and political expediency in Covid times
Governments cannot escape implementing their policies. Implementation is not just getting it done, but letting it happen.
Governance in Covid-19 times has shown that implementation is the toughest task for any government. Those who violate laws with impunity, escalate both the costs and hazards of policy implementation? State machinery in most situations is not robust enough to prevent it whether it’s Nizamuddin Markaz or the Kumbh Mela, election rallies in India or the compulsive Spring Breakers at Florida and Miami beaches in the US, or even the 17th March crowding around Irish pubs in the UK to raise a glass to the patron saint.
Sometimes politicians scramble to bond with defiance as the Chief Ministers of Uttarakhand and UP threw public invitations for the Kumbh fair, akin to Governor Ron DeSantis wholeheartedly welcoming cheering Spring Breakers with assurance that “there are no lockdowns in Florida… it’s not gonna happen”. How would an implementer deal with such situations when even in the midst of a pandemic the ‘no mask & no helmet’ braveheart pass-by with flirtatious impunity. Violations such as those against pandemic-lockdowns are strengthened by beliefs of chivalry, protest or community ethics and become powerful weapons against virus control measures. Yet, governments cannot escape implementing their policies. Implementation is not just getting it done but letting it happen. It involves a number of tangible and intangible inputs which are built over time and not created simply by invoking a law through a television announcement. Laws constitute the weakest stilt in the implementation process while for others one can look into our history of administrative reforms.
An expert panel in a recent Lancet paper has recommended eight “urgent’ steps for the Central and state governments to prepare against a more ferocious third wave of the virus. The Kappa (B.1.617.1), Delta (B.1.617.2) and increasing numbers of Delta Plus (AY.1) variants of coronavirus with the latter most likely to escape even the immune system of a person is burdening implementing agencies. So, what should the government do? The suggested eight urgent steps for the implementation of pandemic control policies include decentralised decision making, need to cap cost of essential health services, dissemination of clear information, optimum utilisation of human and other resources, vaccine procurement by Central government, public participation, transparency in government data collection and lastly provision in cash transfers. With a seven-year record of implementation of various flagship policies it would be interesting to assess if the government has a will, capacity and philosophy to implement these suggested eight steps.
That most policy slippages occur at an implementation level has been a traditional worry amongst senior officers heading the Department of Administrative Reforms and Personnel Grievances (DARPG). When the UPA government announced the Second Administrative Reforms Commission within one year of its taking over in 2005, it focused on compiling and evaluating innovations and best practices from the panchayat level to the district and the state levels. The DARPG reached out to the Centre for the Study of Law and Governance at Jawaharlal Nehru University (JNU) for conducting evaluation of a large number of best practices submitted as ‘success stories’ by district magistrates and secretaries at the states and Central ministries. This was the first such self-evaluation drive undertaken since Independence by the government for identifying both cogs and lubricants in the complicated implementation process.
The Fifth Pay Commission raised its head the same year with a placard of performance as a key criterion for promotions, voluntary retirement and also a golden handshake. It triggered ample turbulence amongst younger district magistrates to show performance and with an institution like JNU known for its scathing analytical acumen being in a driver’s seat for evaluation, this nervousness became more intense in states like Haryana where almost every policy was rated as a best practice or like UP where they skeptically asked ‘best out of what?’. Evaluation teams were most welcome in the Northeastern states where humble district administration and ward councillors found this as an opportunity to come under the watchful eyes of Delhi for the many cost-effective, innovative measures they have been undertaking for years without even being noticed. Most of their so-called ‘good’ micro practices were never marketed the way Haryana, Tamil Nadu and MP could do. I recollected the Hawthorne experiments of the 1920s which brought out ‘supervision and being watched’ as an underlying push for women teams to have scored better than men. For the Northeastern states, evaluation teams became a medium before which they could showcase their innovative community participatory approaches in implementation. This approach which engages with Community Based Organisations (CBOs), Self-help Groups (SHGs) and other forms of non-government organisations (NGOs) provided sustainability and cost-effectiveness to implementation in contrast to Haryana’s personality driven, capital intensive and short shelf-life policies.
Digvijaya Singh as Chief Minister of Madhya Pradesh invoked Citizens’ Charters (CCs) within the e-governance frame. As our research team travelled during peak summer through the terrain of Jhansi from UP to Orchha town in MP, we encountered a world of difference. The youngsters of around 3,000 Brahmin families on the right side of the town who were mostly educated but poor, had cement houses but no livelihood, found it feasible to cross over to the side of tribal communities having rich craftsmanship, art, theatre and music but no access to benefits of governance and therefore remained uneducated and marginalised. Under many governance schemes the unemployed youngsters got an opportunity to educate and synchronise marketing of tribal forest usufruct and their art to the outside world. We saw caste and religious barriers waning fast in the process, love flourished and implementation strengthened. The DMs office almost 100 km away from Orchha with a run-down road and almost an immobilising drive through a narrow five-feet broad shaky bridge over Betwa river, dying and dead animals on either side of the road due to lack of water was a story of another world. No-one ever heard them but an e-governance initiative of Taara-Haat mobilised CCs to support developmental work undertaken at some of the most interior places.
The Indian Institute of Public Administration (IIPA) had organised a discussion on Citizens Charters with the country›s senior administrators sometime in 2007-08 in which the Additional Secretary D.V. Singh representing DARPG had made an important but pathbreaking note to the government, that not much can be left in the hands of administrators as citizens should share some burden of implementation. A prudent government would rather focus on creating platforms of government-citizen collaboration at various levels of policy implementation than treat policy declarations as self-programmed softwares to achieve ends. This project of evaluation had been a wholesome experience when the unassuming Manmohan Singh kept directing Prithvi Raj Chavan, Minister of State for Personnel, Public Grievances and Pensions, on what to do next. He never stood on a dais to thunder as it appeared, he knew that implementation cannot be a whip on the horse as a good racing horse always needs a warmup.
Within the first two years of attaining power at the Centre, the NDA government announced its five flagship schemes and countrywide campaigns such as Digital India, Beti Bachao-Beti Padhao or Swachh Bharat Abhiyaan, Make in India, etc.The first flagship programme ‘Pradhan Mantri Jan-Dhan Yojana’ to provide financial inclusiveness and support to the marginalised classes rushed with opening of basic savings bank deposit (BSBD) account with minimal paperwork, relaxed KYC, e-KYC, account opening in camp mode, zero balance and zero charges. The country’s banking systems which did not have a matching number of personnel and capital to address this new challenge soon started showing signs of collapse. The result was the merger of banks. During the second UPA most merging banks failed to open new accounts as their problem of collating and merging extensive databases consumed their time and resources. Moreover, with new regulations the UPA switched from ‘no paper work’ to a ‘longer paperwork and more number of documents’ as a precondition to open a bank account. Centralisation in decision making once again lost the poor in public financial institutions.
Atal Pension Yojana (APY), the second flagship social security scheme of the Modi government, was made to deliver old age income security, particularly to the workers of the unorganised sector. The stringent policy decisions against NGOs and other community-based organisations combined with demonetisation and new FCRA rules almost crushed the unorganised sector. Third flagship programme, Pradhan Mantri MUDRA Yojana (PMMY) stands for Micro Units Development & Refinance Agency Ltd; it is a financial institution being set-up by Government of India for development and refinancing micro unit enterprises. With stressed out banks, manpower shortages and unorganised sector annihilated there is little to talk about for micro units. Fourth flagship programme, Pradhan Mantri Ujjwala Yojana (PMUY) with an aim to provide 8 crore deposit free LPG connections to poor households in the country could not continue the zeal beyond the first 2-3 years as purchasing power decreased and cylinder cost skyrocketed. Lastly, the Modi government’s fifth flagship programme of Gold Monetisation Scheme provided different options for people to monetize the gold lying waste in their houses. Ironically, the government itself revealed that the scheme has led to only 6.4 tons of gold deposits till date which is even less than 2% of the annual imports of gold in those years. Temples and people had little trust in the government to hand over their gold to the scheme.
The NDA campaigns definitely stirred people with much energising Digital India and the progressive Swachh Bharat Abhiyaan. How could the implementation fatigue set in so fast in them? People’s engagement into collaborative partnerships to achieve any such campaign could not be picked up as most non-government platforms for achieving these ends stood demolished after demonetisation. Implementation is an incremental activity and if a new government wrecks institutions raised by previous incumbents it also lays waste a huge amount of trust and faith from the past. An instant call for defeating everything setup by the previous government with slogans such as the ‘Congress-mukt Bharat’ generated insecurity amongst a large majority, impelling violations, rebellion while not sparing the new regime with a lack of legitimacy tag. Mature and experienced governments avoid such situations as they try to or even pretend to walk with people.
A standard principle for implementing any policy is the implementer’s own demonstrable firm belief and apparent trust in its success. The second Covid wave policy derailment across the country is being seen and rightly so as a result of leaders who after storming the Markaz justify the Kumbh, after shedding Covid norms in election rallies return home to impose fines and talk of accountability when they demonstrate most opaque distributive policies towards state governments and talk of democracy at G7. Implementation is a culture of ethics which does not come from laws alone but from a sense of belongingness that a government generates in people that they have a role to play. So, go ahead to create democratic platforms and not stay divided.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.
HOW CAN POLITICAL PARTIES STOP THE PAN-INDIA MODI JUGGERNAUT?
Can the Opposition form a bloc without the Congress? NCP chief Sharad Pawar is said to be exploring this option, with or without Prashant Kishor’s blessings. It’s not too difficult to see the rationale behind such an exercise for the Congress party’s track record in taking on the BJP electorally has not been very good. Take a look at the recently concluded five Assembly seats—the one state where it was a direct fight between the BJP and the Congress, the latter lost even though the BJP was facing an anti-incumbency in Assam. And in states where the BJP faced a non-Congress party, it lost — West Bengal. It’s not that the BJP cannot be defeated but an electoral battle led by Mamata Banerjee, Arvind Kejriwal, Uddhav Thackeray, Navin Patnaik, or even Nitish Kumar has a better success rate than a lone Congress campaign.
And as many analysts have pointed out that once the election is a national level one, then the fight naturally becomes one of Narendra Modi vs Rahul Gandhi. And we all know how that one ends. Hence it makes sense to form a non-Congress, non-BJP front with two or three strong faces to take on the BJP and keep the Congress as a post-election option. Since Narendra Modi still retains his edge over any other leader pan-India, it makes sense not to put one face against him as that face will always fall short. However, the coalition has to be clear about its message. It is not enough to criticise the BJP but the Opposition also needs to be clear as to what alternative it is offering the voter.
Moreover, it will not be that easy to take the Congress out of the equation for there are around 195 seats where the Congress is pitted directly against the BJP; and this is the Achilles’ heel in any fight against the saffron party. As Sanjay Jha, former Congress spokesman, told me, the Congress needs to win at least 100 of these seats. If it doesn’t then the BJP’s number will be too huge for the regional (Opposition) parties to measure up to. Jha has a solution pointing out that all Congress needs to do is to focus on the low-hanging fruit instead of wasting its energies on Uttar Pradesh, a state which Rahul Gandhi has been focusing his energies on ever since he debuted in 2004. “In the last elections, the BJP won 175 seats of the 195 where Cong and BJP in a direct fight,” says Jha.
However, to be fair to Rahul Gandhi, he will probably be quite happy supporting any coalition that will take on the BJP without insisting on leading it. After all, if he is reluctant to lead his own party, then why would he insist on leading a coalition? One way to check this would be to insist that a non-Congress leader taking over as Chairperson of the UPA. Currently, Sonia Gandhi holds this post, but given the fact that she wants to step back from active politics, perhaps the post should go to another more active leader. Such as Mamata Banerjee? It is also clear that the fiery leader from West Bengal harbours national ambitions. And to be fair, from all the opposition leaders, her track record in taking on the BJP cannot be questioned.
While the general elections are still three years away, the focus is on the semi-finals which will be fought in Uttar Pradesh early next year and then Gujarat. In the first, the onus lies on another regional leader, Akhilesh Yadav to try and stop the BJP juggernaut while Gujarat has usually been a straight fight between the BJP and the Congress, but of late, the Aam Admi Party has expressed an interest in the state. With Kejriwal himself making routine appearances in Modi’s ‘karma bhoomi’, this will be an interesting battle to watch. And the results of both UP and Gujarat will bring with them markers for the 2024 general elections.
Recalling unsung legacy of Syama Prasad Mookerjee
Today, a day after Dr Syama Prasad Mookerjee’s 68th martyrdom anniversary, Prime Minister Narendra Modi holds a meeting with political parties from Jammu and Kashmir to chart out the future electoral map and trajectory for the region. It’s a fitting tribute to the great patriot.
It is deeply symbolic and profoundly significant that on 24th June, a day after Dr Syama Prasad Mookerjee’s 68th martyrdom anniversary—Balidan Divas—Prime Minister Narendra Modi will confabulate with political parties from Jammu and Kashmir to chart out the future electoral map and trajectory for the region.
Prime Minister Modi’s vision of a new Jammu-Kashmir and Ladakh had been spelt out immediately after the defanging of Article 370. He had spoken of a new beginning for the region, a beginning that is inclusive and equitable for everyone. The last two years have been a phase of multi-dimensional development for the region. Dr. Mookerjee’s original demand for the removal of 370 was made with the sole aim of cementing India’s unity and integrity and of depriving no region or section of the benefits of the Constitution.
To anyone who has gone through Dr Mookerjee’s interventions in Parliament and his correspondences, this aspect becomes clear. It is only the Congress ‘family’ historians and Communist propagandists who have deftly blanketed that dimension of his demand. It was a demand made and debated within the ambit of Parliament, it was a demand that was articulated and argued for by Dr Mookerjee through a sustained and copious correspondence with two of the principal personalities whose decision mattered the most– Nehru and Sheikh Abdullah. When his persuasions failed, Dr. Mookerjee resorted to a democratic non-violent movement within the democratic framework of the new Republic. In fact, it was Nehru who cracked down on the movement across the country and it was Sheikh Abdullah’s police who fired on the demonstrators, tortured and imprisoned them.
It has served and continues to serve a section of the commentariat to paint Dr. Mookerjee’s demand as a narrow, politically expedient majoritarian demand. It is this same section that branded, as fascist, the Modi government’s historic step to disable Article 370. Discussing the situation in Jammu-Kashmir, in Parliament on 26th June 1952, a year before his death in detention in Kashmir, Dr. Mookerjee, for instance, argued that, “In a democratic federal state, the fundamental rights of the citizens of one constituent unit cannot vary vis-a-vis the citizens of another unit. Are not the people of Jammu and Kashmir entitled to the fundamental rights that we have given to the people of India minus Jammu and Kashmir? There is no scope for varied constitutional patterns, disparities as between one federating unit and another… All citizens of India…must enjoy the same fundamental rights and the same legal remedies to enforce them… But the fundamental question is that the fundamental rights of the citizen must apply to Jammu and Kashmir. There could be no compromise on that issue. The Supreme Court must function as the highest court or tribunal in the whole of India, Jammu, and Kashmir including. The Auditor-General’s writ must function in the whole of India including Jammu and Kashmir. These are important issues, which should be conceded… Let us discuss the whole question.” Dr Mookerjee also cautioned Nehru on the floor of the House, that he “must firmly assert that we do not want this ‘sovereign Kashmir’ idea. If you start doing it in Kashmir, others also will demand it.”
To Nehru’s fulmination and incoherent outbursts that the Jana Sangh, Dr Mookerjee and the demand for setting aside Article 370 was driven by a communal and sectarian motive, Dr Mookerjee’s rejoinder was unequivocal, ‘do not regard that, whenever an attack is made on certain matters of policy, some narrow, sectarian communal motive is prompting us. Rather it is the fear that history may repeat itself. It is the fear that what you are going to do may lead to the ‘Balkanisation’ of India, may lead to the strengthening of the hands of those who do not want to see a strong United India.’ The principle motive of Dr. Mookerjee’s demand was to arrest, expose and dissolve those forces who did not want to see a newly freed India remain united and integrated. Decades after these words were spoken, when read in the backdrop of the present, they seem so clear and so amazingly prescient.
In February 1953, a few months before his sudden death in Srinagar, Dr Mookerjee making his interventions in Lok Sabha in the motion on the Address by the President. Candidly making a sort of a final appeal, he said, “The suggestion is: accept the Indian Constitution. This is a Constitution framed by a Constituent Assembly which was dominated by Shri Jawaharlal Nehru himself. This is a Constitution that is based on secular considerations. It is not a Constitution dictated by any communal motives. If it is good enough for four crores of Muslims in India why can it not be good for the people of Jammu and Kashmir?”
Can anyone who believes in the virtues of the Indian Constitution, in our democratic fabric, and has a deep and abiding commitment to and faith in India’s unity and freedom join issues with this position? It is only the advocates of separatism, who ‘do not want to see a strong United India’, who have functioned within India as satellites of extraneous forces and ideologies who oppose it. These elements have, over decades, painted the demand for abrogating Art 370 as detrimental to Kashmiri interests, as communally motivated, a sectarian demand made with the motive of clamping on the rights of the people of the region and of foisting on them a majoritarian rule to exploit and enslave them.
This is the narrative that was and has been pushed across the world with the help of disintegrate-India cartels, both political and academic, which function in various institutions abroad or operate through various disguised forums in the name of human rights.
These cartels are mainly supported by the Pakistani establishment and their benefactors in the West and it has been their principal objective, since the summer of 2014, to try and ensure that India remains stymied in adversities, delaying her emergence as a leading power. That hope was permanently damaged and destroyed when Article 370 was abrogated on 5th August 2019.
In his Independence Day address on 15th August 2020, from the ramparts of the Red Fort, with the entire country riveted on him, Prime Minister Modi had said, “The delimitation exercise is going on in Jammu-Kashmir under the leadership of retired chief justice of the Supreme Court. We want early completion of the delimitation exercise so that there are early elections; there should be Jammu-Kashmir MLAs, its own cabinet, its Chief Minister so that it can march towards development with new vigour. India is committed to it and is making all efforts in this regard.” His intentions were clear then, the roadmap and its aims were also evident. Those who rejoice by saying that Modi has extended the invitation under pressure, ignore those public articulations of his.
With the electoral and political process, Jammu and Kashmir will be on an unalterable trajectory towards complete integration. Its status will be like any other State of the Union, a state firmly within the ambit of the Constitution and a robust participant in the march for ‘New India.’ It is a fitting tribute to Dr Mookerjee’s vision and sacrifice.
The writer is the director of Dr Syama Prasad Mookerjee Research Foundation, New Delhi. The views expressed are the writer’s personal.
IMRAN IS JUST A SYMPTOM, REAL PROBLEM IS THE IDEA OF PAKISTAN
Pakistan Prime Minister Imran Khan is a perfect manifestation of what’s wrong with his country today. A leader who was in his youth known as much for his cricketing exploits on field as for off-the-field glamorous lifestyle, is today the brand ambassador of the Taliban. Last year, he infamously called Al Qaeda terrorist Osama bin Laden a “martyr”, a statement which his Foreign Minister, Shah Mahmood Qureshi preferred to duck in a recent interview to an Afghan TV channel, saying the PM was quoted “well, uh, again, out of context”. When the journalist persisted with the question: “Is he (Osama bin Laden) a martyr? You disagree (with Imran Khan)? On Osama bin Laden?” Qureshi said, “I will let that pass.” How can a minister go against his own master?
If in 2020 he called Osama bin Laden, the mastermind of 9/11 terror attacks in the US in 2001, a ‘martyr’ while addressing the country’s parliament, the National Assembly, this year, he blamed women for the rising sexual violence in Pakistan. In an interview, which aired on 20 June, the Pakistan PM said, “If a woman is wearing very few clothes it will have an impact on the man unless they are robots. It’s common sense.” Blaming “fahashi” (vulgarity) for the rise of rape and sexual violence in the country, he invoked the importance of religion and the concept of ‘purdah’ in Islam. It is to remove “temptation” from society because “not everyone has willpower”, he emphasised.
Interestingly, and of course ironically, the same Imran Khan, according to his biographer Christopher Sandford, was in his youth known for his popularity among women and his frequenting of night clubs. Sandford writes in his book, Imran Khan: The Cricketer, The Celebrity, The Politician, that Imran Khan visited all the famous nightclubs in the UK and Australia, and would love to meet and court women. He would not drink alcohol, but wouldn’t have a problem with others doing the same.
Unfortunately, for Pakistan, this has been its tragedy all through its brief history as a nation-state. It got leaders who were overtly non-religious but never dithered in using the worst form fundamentalism for benefits, personal or otherwise. Just look at Mohammed Ali Jinnah: He used to drink alcohol, eat pork, smoke 50 cigarettes a day, and dress like an English gentleman. Yet, it was he who created Pakistan in the name of Islam! In the early 1970s, it was a socialist in Zulfikar Ali Bhutto who introduced radical Islam in the country—a trend which gained momentum under Gen Zia-ul-Haq. Then there was Benazir Bhutto, one of the most ‘liberal’ Prime Ministers in the history of Pakistan, who presided over the Taliban’s rise in Afghanistan. Gen Pervez Musharraf “did not blanch at whiskey, danced when the mood was upon him”, as Steve Coll describes him in his Pulitzer Prize-winning book, Ghost Wars, and yet he believed firmly in the necessity of the Taliban.
So, what does this phenomenon tell India and Indians, who would historically go weak-kneed whenever a “democratically elected” government comes to power in Pakistan—till the Modi government decided to give it up after the Uri and Pathankot attacks? We would be told by our peaceniks and so-called experts to reach out to the newly elected rulers of Pakistan, to make a grand concessionary gesture to help strengthen their hold in the fledgling democratic setup. This explains some of our excessively indulgent moves—from the one-sided concessions being granted by Mrs Indira Gandhi to Zulfikar Bhutto, to Atal Bihari Vajpayee making an earnest but naïve peace overtures to Islamabad via the Lahore bus diplomacy, which ironically ended up at the treacherous Kargil heights at the loss of hundreds of young soldiers.
As the transformation of Imran Khan from a suave, charismatic playboy to a hardened Islamist—and also other Pakistan leaders in the past from Jinnah to Nawaz Sharif—suggests, secularism and liberal values are sacrificed first at the altar of power in Islamabad. Anyone ruling that country will have to seek legitimacy from Islam and Islamists, especially those who are seen as suspects. And this, unfortunately, may be the reason why there may not be any redemption for democracy in our immediate western neighbourhood in the near future at least. And so is the case with good neighbourly relations with India.
In fact, India must be prepared for a perpetual state of warfare, overt or covert, with Pakistan, for its very raison d’etre is based on anti-India sentiments. It sees its existence as a state constantly in fight with India. Pakistan sees itself as an antithesis to the very idea of India, which invariably threatens the ‘3Ms’ that define Pakistan—Mullah, Military and Militant. Imran Khan is just a symptom. The real problem is the idea of Pakistan.
TIME TO MAKE CHINA PAY FOR WUHAN VIRUS
Beijing has paid in terms of its reputation. Now it will pay with money.
The world is a funny place. In May 2021, that pucca British-accent fellow who masquerades as Pakistan’s Foreign Minister claims that his country’s priorities have changed. In June 2021, Virus Pong, realising how isolated his country is, asked his officials to create a “trustworthy, lovable and respectable” image for China! Wolf warriors, please go back to your lairs, your aggression has backfired.
“Here’s the smell of the blood still. All the perfumes of Arabia will not sweeten this little hand,” lamented Lady Macbeth, possessed by the guilt of regicide.
After converting our planet into a gas chamber, Virus Xi tries to morally reinvent himself as a great humanitarian, out to save humankind through his fake vaccine. Ask the Tibetans and Uighurs and Kazakhs and Manchurians if his concept of innate Han superiority has been abandoned. I wonder if Hitler ever knelt beside the Auschwitz-Birkenau concentration and extermination centres to seek forgiveness from his Jewish victims, and loudly lamented German eugenics. China plays the victim and aggressor card at the same time.
Following the 1900 Boxer Rebellion in China, the Qing dynasty was forced to sign the humiliating Boxer Protocol, which imposed backbreaking compensation obligations. Remembering that, and lamenting its humiliation every year, China decides to become aggressive.
Its global image takes a severe beating. China’s coming-out party with the impressive 2008 Beijing Olympics won universal admiration. But the world’s suspicion intensified when China boasted about the superiority of its system versus liberal democracy. The global focus on the 2013 ill-fated trillion-dollar Bilk and Rob Initiative has mutated like the virus from appreciation to angst.
The anti-China ire is even more vehement, now that there is credible evidence that the virus is a Chinese pathogen-based bioweapon that the Chinese military wanted to win a war without fighting it by crippling the adversary’s medical system. Even the god of viruses, Dr Anthony Fauci, is no longer sure that it is a natural phenomenon.
Atom bombs are a passe; they have been around since 1945 and many countries have them. A nuclear bomb has to be physically delivered and the delivery vehicle can be traced. A bioweapon is totally anonymous and gives its user total deniability, not just plausible deniability.
As its mask slips, China flails about desperately, following its template of economic blandishments, abuse and subterfuge. It claims that the deadly virus originated in America, in Italy, in France, in India, in Africa, on the moon, anywhere but in Wuhan. Even their media first called it the Wuhan virus, and then, on orders, blamed the United States’ military, but China’s Ambassador to the US confirmed in an interview in March 2020 that Covid-19 was not developed in a United States military laboratory.
There is no doubt among the senior Chinese leadership about the origin and lethality of the virus, so obfuscation and lies were imperative. China’s wolf warriors quickly launched a massive “infodemic” of denial and disinformation on Virus Pong’s instructions with one clear message: The truth must never get out.
China restricted internal travel but encouraged its diaspora in early 2020 to go back to their countries of residence. It ordered its Sancho Panza in the World Health Organization (WHO) to ask countries not to suspend flights to China, to create the impression that all was well. He said “Yesss Sirrrr”.
No credible epidemiologist in the world has shown evidence that the virus originated anywhere but China. A smart criminal, after committing his act, first destroys fingerprints, footprints and bloodstains.
When the US government shut the Chinese Consulate in Houston last year, a pall of smoke hung over the compound for several days as the staff burnt the copious files they kept on Chinese-Americans working in that hi-tech region.
But even the sharpest felon cannot eliminate circumstantial evidence such as chronology of events, movement, injury on the victim’s body, witnesses. Chinese officials claimed that the virus might have been discovered in China, but did not originate there, but instead of permitting research into the origins of the virus, vital to prevent the next pandemic, China tried to focus on who should be blamed.
The WHO team did not get approval for a year to visit the Wuhan Institute of Virology. When they did, the most important data was not shared with them.
Do not link political issues with economic ones, China tells India. But it does just that when Australia asks for an international inquiry into the origins of the Chinese virus and imposes economic costs on Australia.
So, in a strange symbiotic way, the global anger and Chinese vituperation overfeed on each other. In April 2020, former US Secretary of State Mike Pompeo said: China’s Communist Party will pay the price for not sharing information they had about the coronavirus pandemic and thus causing a “huge challenge” for economies.
The actual damage to the global economy now being talked about is several trillion dollars. Two Harvard professors have termed the pandemic among the greatest calamities in modern US history, the greatest threat to prosperity and wellbeing since the Great Depression of 1928. They estimate that the cost of the pandemic to America will be at least $16 trillion (more than the amount spent on all the wars—in Iraq, Afghanistan, and Syria since 9/11) provided the pandemic ends by 2021, which is optimistic.
The long-term effects of the Chinese virus, even on mildly-infected people infection, is far worse than was originally anticipated, according to researchers and doctors in northern Italy, and confirmed by American and Indian doctors. Since the virus attacks every human organ, psychosis, cardiovascular trauma, insomnia, renal and hepatic disease, spinal and biliary infections, strokes, chronic tiredness, and mobility issues are being identified in former coronavirus patients in Lombardy, the worst-affected region in the country. A recent US study confirms that 4/5 Chinese virus patients developed encephalopathy ranging from short-term memory loss and difficulty with multitasking to confusion, stupor, and coma.
India is second only to the US in infections. The cost to India would be enormous, with its economy contracting over 7% in 2020 and likely to shrink again in 2021. Based on a regression analysis using dependent and independent variables of economic output lost, human lives destroyed, material damage costs, diversion of resources, medical costs, and recovery costs, I estimate the cost to India to be $3 trillion from 2020-25.
Many countries went into months of lockdown in 2020 in a bid to stem the spread of Covid-19, which reduced cross-border travel and accelerated job losses. Governments increased spending to cushion the economic damage, but are now left with a huge debt pile. Meanwhile, central banks around the world slashed interest rates and purchased more assets to inject more money into the financial system. The pandemic has sent the global economy into one of its worst recessions ever, and it isn’t yet clear when a full recovery will be in place.
A slow rollout of vaccines across developing economies could hamper the return of activity to pre-pandemic levels. Even among advanced economies, renewed lockdowns in Europe in a bid to stave off a resurgence will push back economic recovery. The International Monetary Fund (IMF) forecast the global economy could shrink 4.4% in 2020, before bouncing back, but warned that the return to pre-pandemic levels will be “long, uneven, and uncertain”. Globally, government measures to cushion the pandemic’s economic blow totaled $12 trillion, the IMF said in October last
But that was before the second wave hit. The Organisation for Economic Co-operation and Development said that in some countries, the early effects of Covid-19 on labor markets were “ten times larger than that observed in the first months of the 2008 global financial crisis”.
Will China pay when reputed experts estimate China’s debt to be over USD $40 trillion, three times its GDP? Much of law is based on precedent. Making the defeated party pay war compensation has a long history. It is intended to cover damage or injury inflicted. War reparations refers to money or goods changing hands, but not to the annexation of land. Rome imposed large indemnities on Carthage after the First and Second Punic Wars of the 3rd century BCE. The 1815 Treaty of Paris ended the Napoleonic wars. France was ordered to pay 700 million francs in indemnities. In proportion to its GDP, it is the most expensive war reparation ever paid by a country. The 1919 Treaty of Versailles and the 1921 London Schedule of Payments required Germany to pay 132 billion gold marks ($33 billion). The final payment was made in 2010.
After World War II, according to the July 1945 Potsdam conference, Germany was to pay the Allies $23 billion mainly in machinery and manufacturing plants, while its wartime ally Italy agreed to pay $400 million. Finland, Hungary, Romania, Bulgaria, Japan, Hungary too agreed to pay. Japan had to pay $600 million to several countries, among which India (and some others) declined to accept any reparations. After the Gulf War, Iraq’s financial liability for damage caused in its invasion of Kuwait was assessed at $350 billion. So, the precedent exists. So does the will.
We call the present situation “war” against the virus. Even if Xi PingPong changes course and decides to come clean, it may be too late. Realising that it is too expensive to be the sole Rambo of the world, America is repairing its relations with traditional allies and friends in Europe and Asia, and even worse from Beijing’s perspective, is pushing an international coalition to take on China. It has closed off space for China, by rejoining the WHO and the Paris climate accord. In May 2021, the top American diplomat for Asia said that the era of engagement with China was over and henceforth it would be a competition. The Quad is being strengthened by the day.
In October 2020, India, South Africa and 100 developing nations asked the WTO for temporary patent waivers for vaccines. Nine months later, in a carefully crafted statement, China said that it supported the appeal. But is this vaccine diplomacy or vaccine hypocrisy?
Why did China wait so long? China suffers from an acute identity crisis. Is it a struggling developing country, or is it the world’s reigning superpower in every which way? It also suffers from an acute superiority complex, and wants to be the leader in the vaccine stakes, but always thinks of its own commercial interests. If many countries start making virus vaccines (an unlikely scenario), who will buy the Chinese fakes?
Over 100 Bilk and Rob Initiative (BRI) countries have renegotiated their debt to China. As demands grow for China to pay for the devastation it has caused, many poor nations will scream for compensation. All of China’s soft power attempts are unravelling.
We are seeing the green shoots of an alliance of nations that will refuse to do business with China. The perfect storm has hit China: Massive food shortages; endless floods from May 2020; several million displaced; banks in huge debt; and foreign exchange at its lowest. In addition, even the PLA is disgruntled, while PingPong has lost the trust of his people.
“We’re going to be back in the game,” promises Joe Biden, and asks his intelligence fellows to quickly prepare a consolidated report on the origin of the virus. China has paid in terms of its reputation. Now it will pay with money.
Ambassador Deepak Vohra is Special Advisor to Prime Minister, Lesotho, South Sudan, and Guinea-Bissau; and a Special Advisor to Ladakh Autonomous Hill Development Councils, Leh and Kargil. The views expressed are personal.
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