Constitutional Ideals Towards
Equality, Justice & Fraternity in Contemporary
India: Creating a better Tomorrow through Law
CONCEPT OF REGIONALISM
India is a large country having continental dimensions and comprising no fewer than
29 States and 7 Union Territories. It is a multi-racial, multi-lingual nation. There are
scores of regional languages, various strains of culture and different loyalties, single
as well as multiple. Amidst the amazing diversities, it is natural that regional
feelings, regional parties, regional institutions and similar other organizations meant
for voicing the aspirations of local people and providing forums for them, should
emerge. Indeed, with the passage of years, the multi-faceted aspirations, which
together may be described as regionalism, have gained strength.
Regionalism is a tendency when people favour regional interests, regional culture
and regional ideas over national considerations.
National unity is not impaired if the people of a region have a genuine
pride in their language and culture.
Regionalism is a way to respect the distinctiveness of regional culture
and to maintain unity with diversity. Indian constitution has adequate
provisions in all its parts to maintain the unity and integrity of India keep
intact. Single citizenship and secularism are there to foster a sense of
collectivity among citizens.
“Unity in Diversity”
The term “Unity in diversity” refers to the state of togetherness or oneness in-
spite of presence of immense diversity.
“Unity in diversity” is based on the concept where the individual or social
differences in physical attributes, skin colour, castes, creed, cultural and religious
practices, etc. are not looked upon as a conflict. Rather, these differences are looked
upon as varieties that enrich the society and the nation as a whole.
Unity in diversity is a very important principle because we all live in a diverse world
and it is crucial to respect each other and to support each other no matter what our
culture, background, gender, orientation or other differences may be.
The preamble to the Constitution of India embodies the basic philosophy
and fundamental values on which the constitution is based. It contains
the grand and noble vision of the constituent assembly, and reflects the
dreams and aspirations of the founding fathers of the constitution.
One of the prominent aim is to achieve Equality. The term 'equality'
means the absence of special privileges to any section of the society, and
the provision of adequate opportunities for all individuals without any
discrimination.
Equality helps in promoting brotherhood among human beings and it
protects status and dignity of all men. It is the foundation of socialistic
democracy based on secularism.
It requires the state to take action legislative judicial or administrative to
provide protection to weaker sections of the society. Equality as an
aspect of justice has two phases namely, equality as a means of doing
justice and equality as an end of justice.
One may accept the notion of equality, social, economic and political as
an end of justice. The Preamble secures to all citizens of India equality
of status and opportunity.
The term 'justice' in the Preamble embraces three distinct forms—social, economic
and political, secured through various provisions of Fundamental Rights and
Directive Principles.
Social justice denotes the equal treatment of all citizens without any social
distinction based on caste, colour, race, religion, sex and so on.
It means absence of privileges being extended to any particular section of the
society, and improvement in the conditions of backward classes (SCs, STs and
OBCs) and women.
Fraternity means a sense of brotherhood. The constitution promotes this feeling of
fraternity by the system of single citizenship. Also, the Fundamental Duties (Articles
51-A) say that is shall be the duty of every citizen of India to promote harmony and
the spirit of common brotherhood amongst all the people of India transcending
religious, linguistic, regional or sectional diversities.
The Preamble declares that fraternity has to assure two things the dignity of the
individual and the unity and integrity of the nation.
INDIAN CONSTITUTION AND WOMEN
The Constitution of India prohibits discrimination based on sex but it equally directs and empowers
the government to undertake special measures for women.
The Preamble to the Constitution resolved to secure all its citizens, including equality of status and
opportunity while Articles 14 to 18 and 39 provide for Right to equality and non- discrimination
among men and women.
Article 14 ensures that the state shall not deny to any person equality before law. It prohibits class
legislation but permits reasonable classification.
Article 15 (1) prohibits discrimination against any citizen based on religion, race, caste, sex or place
of birth while Article 15 (3) permits ‘protective discrimination’ in favour of women according to
which state can make special provision for women and the scope of this article is wide enough to
cover the entire range of state activity including employment.
Article 16 of constitution of India ensures equal employment opportunity to every citizen of India.
Trafficking in human beings and forced labour are prohibited [Article 23(1)].
The state to secure for men and women equally the right to an adequate means of livelihood
[Article 39(a)].
The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
The Parliament has enacted the Equal Remuneration Act, 1976 in order to implement Article 39
(d).
The state is required to ensure that the health and strength of women workers are not abused and
that they are not forced by economic necessity to enter avocations unsuited to their strength
[Article 39(e)].
The state shall make provision for securing just and humane conditions of work and
maternity relief [Article 42]. and for this purpose the Maternity Benefit Act, 1961 was enacted.
It shall be the duty of every citizen of India to renounce practices derogatory to the dignity
of women [Article 51-A(e)].
One-third of the total number of seats to be filled by direct election in every
Panchayat shall be reserved for women [Article 243-D(3)].
One-third of the total number of offices of chairpersons in the Panchayats at each
level shall be reserved for women [Article 243-D(4)].
One-third of the total number of seats to be filled by direct election in every
Municipality shall be reserved for women [Article 243-T(3)].
The offices of chairpersons in the Municipalities shall be reserved for women in such
manner as the State Legislature may provide [Article 243-T(4)].
INDIAN CONSTITUTION AND CHILDREN
Right to free and compulsory elementary education for all children in the 6-14 year
age group (Article 21 A)
Right to being protected from being trafficked and forced into bonded labour (Article
23)
Right to be protected from any hazardous employment till the age of 14 years
(Article 24)
Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
Right to equal opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and guaranteed protection of
childhood and youth against exploitation and against moral and material
abandonment (Article 39 (f))
Right to early childhood care and education to all children until they
complete the age of six years (Article 45)
“No democracy can long survive which does not
accept as fundamental to its very existence the
recognition of the rights of minorities”
--- Franklin D. Roosevelt
INTRODUCTION
The problem of minorities is a universal phenomenon. Although the
existence of minorities is universal, the nature of minority problem is not
always and everywhere the same. It assumes different forms and
intensity in various parts of the world at different times and has taxed the
brains of statesman, thinkers and social scientists.
The constitution of India and more generally the international
documents on human rights provides for the necessity of providing
positive discrimination or ensuring affirmative action’s for upliftment
and welfare of the minorities.
Who are MINORITIES ?
The attempt to define “Minority”, particularly in a multi-ethnic and multi-cultural polity
like India faces an inherent challenge; on what basis can a group or community be
attributed minority status?
The Constitution does not define the terms 'minority', nor does it lay down sufficient
indicia to the test for determination of a group as minority.
The U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities has defined minority as under:
“A group numerically inferior to the rest of the population of a State, in a non-
dominant position, whose members being nationals of the State possess ethnic,
religious or linguistic characteristics differing from those of the rest of the
population”.
WHY SPECIAL RIGHTS FOR MINORITIES?
Minority rights are individual and collective rights through which
people belonging to national minority groups are entitled to enjoy their
own culture, to use their own language, to profess and practice their
own religion, to have the right to freedom of expression and assembly,
to have equal opportunities to education and employment, and to enjoy
full participation in public life.
The following arguments illustrate the importance of minority rights:
1. Minority rights and the principle of equality: Minorities are often in a disadvantaged,
marginalised and vulnerable position. Consequently, they require special measures to
ensure that they benefit from the same rights as the rest of the population. Hence, minority
rights serve to bring all members of society to a balanced enjoyment of their human rights.
In other words, their aim is to ensure that persons belonging to a national minority enjoy
effective equality with those persons belonging to the majority.
2. Minority rights strengthen inter-ethnic relations: The protection of minority rights is
an exercise of tolerance and intercultural dialogue. By encouraging mutual respect and
understanding, the different groups that comprise a society should be able to engage and
cooperate with one another, while preserving their own identity. The basic elements
required for the realisation of this goal are to promote knowledge of minorities’ culture,
history, language and religion in an intercultural perspective. In other words, the
protection of minority rights can promote an inclusive, peaceful and cohesive society, with
respect for diversity.
3. Minority rights’ impact on conflict prevention and resolution: Inter-
ethnic tensions, divisions and exclusion that remain unaddressed can easily
become a source of instability and conflict. Dealing efficiently with
minority-majority relations in the aftermath of ethnic conflict is central to
achieving a durable peace. In this regard, the protection of national
minorities is not only fundamental to enhance social cohesion in diverse
societies, but also essential to achieve democratic security, sustainable
development and peace in a context of instability.
4. Minority rights protect and promote a diverse and prosperous
society: All societies in the modern world are multi-ethnic and multi-
national. Ethnic diversity can enrich a society as it makes it more attractive,
competitive and prosperous. As such, it is important to create a climate of
tolerance and inter-ethnic dialogue, not only to achieve peace and stability,
but to enable cultural diversity to be a factor of enrichment and social
strength.
.
5. Minority rights as an essential element of the international human rights
legal framework: States assume obligations and duties under international law
to respect, to protect and to fulfil human rights, including minority rights.
Minority rights, considered under the International Human Rights framework,
are universal, inalienable, independent and indivisible. States, being the
principal actors of the international community, have the legal and moral
obligation to defend such standards.
6. Minority rights focussed in European standards: European history has
shown that the protection of national minorities is essential to stability,
democratic security and peace in the continent. The European Union (EU)
promotes and insists upon respect for human and minority rights amongst its
current and prospective members.
National minorities are entitled to and should be able to maintain and develop
their culture and identity. Accordingly, minority rights aim to ensure that
disadvantaged minorities maintain ‘their rightful place in society’.
Minority Rights: Global Perspective
Minority rights protection was for the first time formally included
within the international legal framework following World War I,
through the League of Nations’ Minority Treaties. However, the League
of Nations was dissolved in 1946.
The Charter of the United Nations does not mention about minority
rights per se, but it does include several provisions on human rights,
Article 1(3) identifies as one of the purposes of the United Nations is
the achievement of international co-operation in promoting and
encouraging respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language and religion.
After World War II, minority rights received significantly less
attention, with the notable exceptions of the United Nations
Convention on the Prevention and Punishment of the Crime of
Genocide (the Genocide Convention), and the International
Covenant on Civil and Political Rights (ICCPR), 1976 which
includes minority rights protection under Article 27.
Accordingly, the States in which ethnic, religious or Linguistic
minorities exist, persons belonging to such minorities shall not be
denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language. It is the legal obligation of
the state parties to protect and implement the provisions for the
minorities at their nationals.
From the early 1990s onwards, several international and regional
human rights instruments that included minority rights provisions
were adopted. Some of the most relevant ones are:
-the
United Nations Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities
(1992)
The General Assembly on 18th December, 1992, adopted this
Declaration recognizing the need to ensure more effective
implementation of international human rights instruments with
regard to the rights of persons belonging to national or ethnic,
religious and linguistic minorities.
– the two Council of Europe treaties,
the Framework Convention for the Protection of National Minorities
(1995) and the European Charter for Regional or Minority Languages
(1992) and;
– the Organization for Security and Co-operation in Europe’s
(OSCE) Copenhagen Document (Art. 31-35) (1990).
Relevant related mechanisms are, inter alia, the
OSCE High Commissioner on National Minorities, the
Office of the United Nations of the High Commissioner of Human Ri
ghts
, the UN Independent Expert on Minority Issues and the
UN Forum on Minority Issues (former Working Group on
Minorities).
MINORITY RIGHTS IN INDIA
The constitution of India guarantees different rights
to the minority. These are cultural and educational
rights which have been guaranteed under Article 29
and 30.
Article 29 Protection of interests of
minorities.
(1) Any section of the citizens residing in the territory of India or any
part thereof having a distinct language, script or culture of its own
shall have the right to conserve the same.
The application of this Article is upon person having a distinct language,
script or culture of its own and it takes into the consideration two types of
minority one linguistic and other religious minority
Under Article 29(1) any school or university can promote education in
regional language as far as it is done for minority and in language of the
minority.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.
This means that there shall be no discrimination against any citizen on the
ground of religion, race, caste or language, in the matter of admission into
educational institution maintained or aided by the state. It is a very wide
provision intended for the protection not only of the religious minorities
but also of local or linguistic minorities and the provision is attracted as
soon as the discrimination is immediately based only on the ground of
religion, race, caste, language or any of them.
The minority people have the right to admission into
any educational institution maintained by the state or
receiving aid out of state funds- Article 29(2) (State
of Madras v. Champakam Dorairajan AIR 1951 SC
226)
Article 30. Right of minorities to establish and
administer educational institutions.
(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
The benefit of Article 30(1) extends only to linguistic or religious minorities and not
to any other section of the Indian citizens. Article here sate linguistic and religious
minority. Here minority means that community which is less than 50 percent of the
total population with the respects of the population of the state.
The words in the article administer and established in the Article 30(1) have to be
read together. This means that the religious minority will have the right to establish
the educational institution and can administer it only.
If it established by the other community or by any other person then they cannot
claim the right under this article.
In Stephen’s College v. University of Delhi A.I.R 1992 SC 1630, The Court
held that the minority under Article 30 must necessarily means those who
form a distinct or identifiable group of citizen of India .
In Ahmedabad St. Xavier College v. State of Gujarat AIR 1974 SC 1389-
Supreme court pointed out the spirit behind the Art. 30(1) is the conscience
of the nation that the minorities, religious as well as linguistic, are not
prohibited from establishing and administering educational institutions of
their choice for the purpose of giving their children the best general
education to make them complete men and women of the country.
The word ‘administer’ and ‘establish’ in Art. 30(1) have to be read
conjunctively. Therefore, a minority can claim a right to administer an
educational institution only if it has been establish by it and not
otherwise. The Court in T.M.A. Pai case was unanimously of the view
that the right to establish and administer an institution in Art. 30(1) of
Constitution comprises the rights (a) to admit students (b) to setup a
reasonable fee structure (c)to constitute a governing body (d) to appoint
staff (teaching or non-teaching), and (e) to take action if there is
negligence of duty on the part of any of the employees.
2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on
religion or language.
Minority educational institute are entitled to get financial assistance
much the same way as the educational institutions run by the majority
community.
In Islamic Academy of Education V. State of Karnataka (2003)6
SCC 697,
It was observed that Article 30 is an additional protection to
bring the minorities onto the same platform as that of non-
minorities for establishing and administering educational
institutions. Moreover, minority educational institutions have
preferential right to admit students of their own community,
which is not available to a non-minority educational institution.
In Usha Mehta V. State of Maharashtra (2004)6SCC 264,
The right of minority institutions under Article 30 cannot be
read to include a ‘negative right to exclude the learning of
regional language’.
In Sindhi Educational Society V. Chief Secretary, Government of
NCT of Delhi, (2010)8SCC 49,
The Supreme Court held that the aided minority educational
institution should not be compelled to appoint teachers from Scheduled
Castes and Scheduled Tribes.
In 2014 in Pramati Educational and Cultural Trust v. Union of
India, a constitutional bench case, Supreme Court held that ‘Right to
Education Act 2009, cannot force minority educational institutions to
admit student from the other communities to enforce the state’s aim of
“free” and compulsory education to “all”. But the court reiterated that
regulatory measures can be applied by the state to all educational
institutions including aided and unaided minority educational
institutions. In Pramati case, Supreme Court held as thus:
…[this] Court has repeatedly held that the State has no power
to interfere with the administration of minority institutions
and can make only regulatory measures and has no power to
force admission of students from amongst non-minority
communities, particularly in minority schools, so as to affect
the minority character of the institutions.
In Christian Medical College, Vellore V. Union of India,
(2014)2SCC 305,
The freedom to run private educational institutions includes
the right to conduct examinations for admitting students. The
court held depriving minority educational institutions of their
right to conduct their own entrance examinations is violative
of Article 30.
In addition to these Fundamental Rights, the Constitution also guarantees the
following minority rights :
a) Special provision relating to the language spoken by a section of the
population of any State [Article 347];
b) Provision for facilities for instruction in mother-tongue at primary stage
[Article 350 A];
c) Provision for a Special Officer for linguistic minorities and his duties
[Article 350 B]; and
d). Sikh community’s right of ‘wearing and carrying kirpans [Article 25].
The DPSP includes the following provisions which have significant implications
for the minorities of our country:
i) Obligation of the State ‘to endeavour to eliminate inequalities in status,
facilities and opportunities’ amongst individuals and groups of people residing
in different areas or engaged in different vocations’ [Article 38 (2)];
ii) Obligation of State ‘to promote with special care’ the educational and
economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes
and Schedule Tribes [Article 46];
Part IV A of the Indian Constitution, which deals with the Fundamental Duties
applies to all citizens, including those belonging to Minorities. Article 51A, which
is of special relevance for the Minorities, has the following provisions for them:
i) Citizens’ duty to promote harmony and the spirit of common brotherhood
amongst all the people of India ‘transcending religious, linguistic and regional or
sectional diversities; and
ii) Citizens’ duty to value and preserve the rich heritage of our composite culture.
Other Initiatives-
With the gradually growing realization among the Indian
policy makers that the minorities in the country are
confronted with diverse and unique challenges from time to
time, there developed a necessity to look into the special
needs of the minority communities separately and
accordingly provide provisions for their welfare and
development in the various national Five Year Plans. Some
of these efforts have been discussed herein –
Minority Commission
The “Minorities Commission”, aimed to safeguard and protect the
interests of the minorities, was set up by the Government of India in
January, 1978. This Commission became a statutory body and was
renamed as the “National Commission for Minorities” with the
enactment of the National Commission for Minorities Act, 1992.
Under Section 2(C) of this Act, the Government of India, notified five
religious communities, namely, Muslims, Christians, Sikhs, Buddhists
and Zorastrians (Parsis) as minority communities in India. Similarly,
in the Sixth Plan (1980-85) it was acknowledged that the minorities
were a separate socio-economic group and hence special provisions
were made for them through the Minimum Needs Programme
Ranganath Mishra commission on minorities 2004
The Justice Ranganath Mishra Commission was appointed to
study various aspects of religious and linguistic minorities.
The Commission has made many recommendations to
provide reservations for the Muslims, Scheduled Cates and
Other Backward Classes in government jobs.
National Minorities Development and Finance
Corporation (NMDFC)
The National Minorities Development and Finance
Corporation (NMDFC) provides for concessional loans for
self-employment and income generating activities to persons
of minority communities, having a family income below
double the poverty line.
Sachar Committee
To evaluate the social, economic and educational condition of Muslims in
India, the Committee, headed by former Chief Justice of Delhi High Court
Rajinder Sachar was formed in 2005.
The Report highlighted a range of disabilities faced by the community, and
made a slew of recommendations to address the situation. It placed Indian
Muslims below Scheduled Castes and Scheduled Tribes in backwardness.
Among the many issues it highlighted were the huge mismatch between the
percentage of Muslims in the population and in decision-making positions
such as the IAS and IPS, and the general poor representation of the
community in the police.
An analysis of government data show that most indicators have not seen
significant improvement in the years since the Report was submitted. In
some cases things seem to have, in fact, deteriorated — in 2005, for
example, the share of Muslims among India’s police forces was 7.63%; in
2013, it fell to 6.27%.
Perhaps the most telling figures are in the IAS and IPS, the country’s top
officialdom. The Sachar Committee recorded the percentage of Muslims in
the IAS and IPS as 3% and 4% respectively.
The Committee has noted that at least 82 different social groups among
Muslims were declared OBCs by the Mandal Commission (1980). Owing to
this declaration many Muslim social groups got reservation in different parts
of the country under the Backward Classes category. Only two States, Kerala
and Karnataka, have provided reservation to the State’s entire Muslim
population (minus the creamy layer).
On the economic front, the Committee observes that
liberalisation of the economy has resulted in
displacement of Muslims from their traditional
occupations, thus depriving them of their livelihood.
Kundu Committee
Set up in August 2013 by the UPA government for an evaluation of the
status of Muslims after the Sachar committee findings, the committee
headed by Prof Amitabh Kundu has given the following
recommendations:
•The committee recommends enactment of an anti-discrimination
legislation to prohibit discrimination based on disability, sex, caste,
religion to move away from quotas and quota politics. This is in line with
“a paradigm shift in India’s approach to equality. Moving beyond
reservations, they use diversity promotion and anti-discrimination to
achieve social justice.
•Reservations are only one of several tools to address widespread,
systematic discrimination in a society. Diversity index and anti-
discrimination legislation together can help build a more equitable
society and a deeper and more widespread notion of equality that go
beyond group-specific quotas and accompanying quota politics.”
• It chronicles the phenomenon of “exclusionary
urbanisation” with a decline in the share of Muslims in
the rural-urban migration that was first noted in the 1990s
and continues unabated. The percentage increase of
Muslims in the urban population is low and the
community is particularly under-represented in smaller
urban centres where social factors and discrimination
restrict mobility. The share of minorities in government
employment remains low – less than half of the share of
their total population in the country. The committee has
recommended “government-led planned and targeted
recruitment drives in a time-bound manner.”
• The committee notes that the natural advantage
which Muslims have in initial health indicators
like sex ratio, higher life-expectancy at birth, better
child survival, are squandered away because of
lack of equal health care access and amenities.
“Inadequacy of health care infrastructure in
Muslim areas, as highlighted in the Sachar
Committee report, has not been addressed despite
initiating specific schemes.”
• Schemes under the Prime Minister’s 15-point programme are plagued by
lack of funds. Ministry of Minority Affairs (MoMA) asked for Rs 58,000
crore under the 12th Five-Year-Plan but the actual outlay was fixed at only
Rs 17,323 crore. The committee recommends expansion of the 15-point
programme to Mahatma Gandhi National Rural Employment Guarantee Act
and the Pradhan Mantri Jan Dhan Yojana.
• Of the 37 government ministries and departments whose employment data
was analysed, the minorities, on an average, constituted 7.5% of new
recruitment in Group A services between 2006-07 and 2012-13, 9.1% in
Group B Services, 8.6% each in Group C and D services.
• Despite lower levels of literacy among Muslims than Hindus, Muslims
have lower gender disparity in terms of education. Outcome indicators
for Muslims at all levels of education are closer to the ST community.
Though enrolment of Muslim children in primary schools is high, there
is also a very high dropout rate so the community, irrespective of gender
or rural-urban residence, is less likely to attain secondary and higher
secondary education.
• But there is some cheer. The scholarship schemes run by the Ministry of
Minority Affairs have done very well. The target for pre-matric
scholarships has risen from 3 lakh in 2008-09 to 40 lakh each in 2012-13
and 2013-14 with a percentage achievement ranging from 115-221%
with Muslims as main beneficiaries. This means that in some years,
more than twice the scholarship targets were achieved.
Post-matric scholarships to minorities have increased
from 75,000 in 2008-09 to 5 lakh each in the last three
years with achievements of 121-178%. Despite such
high achievement in terms of physical targets, the pre-
matric scholarship could utilise only 94.81% of the total
allocation of Rs 1,400 crore in the 11th FYP. Post-matric
scholarships used 71.38% of the allocation, and merit-
cum-means scholarship 71.23% of the allocation.
CONCLUSION
The minorities have been given protection to preserve and
strengthen the integrity of the country. The minority will feel
isolated and separated if they are not given these rights. This is
the true spirit of liberty, equality and fraternity which can be
achieved through medium of education.
The minority rights are essentially the recognition of one’s
separate cultural identity by the state. Through these provisions
the state is obligated to ensure that the minorities have the
freedom to live in accordance with the practices of their
community and have the opportunity to develop to fullness.
The present situation needs to be evaluated critically to give the minorities in
multicultural societies their perspective and place in democratic polity. Democracy is
significant not simply in terms of free speech and other things, it is significant because its
overall purpose is to bring different point of views, and different sensibilities into
constant creative interaction, as truth can only come out of intercultural dialogue.
Apart from legislative frameworks at national level, very often positive measures by states
are necessary to protect the identity of a minority and the rights of its members to enjoy
and develop their culture and language and to practice their religion. In democratic states
committed to human rights, the accommodation of existing diversity through the
protection of the rights of minorities constitutes an important matter of policy and law.
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