Men and Women in Equality; Endowed with same Dignity

        Rainbow Reigns- A rapturous Euphoria        Men and Women in Equality; Endowed with same Dignity

Author: NIMRAH ALI,
3RD YEAR B.COM LLB
 SCHOOL OF EXCELLENCE IN LAW,
THE TAMIL NADU DR. AMBEDKAR LAW UNIVERSITY.

Introduction
“Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.”[1]

There often arises a question of what role does the Constitution play towards the liberation of the chained members of the society? What perception does the Constitution hold with respect to their fundamental rights and liberties? What remedy does the Constitution bestow for a society that is deeply disjointed and diverged? And what role does the Judiciary play to promote the idea of transformative constitutionalism as envisaged by the framers of the sovereign document? All these searching questions became a distinct part of the historic verdicts of the Indian Supreme Court when it was called upon to determine the constitutionality of Section 377 of the Indian Penal Code, 1860 which recognized the rights of the 3rd gender and the praxis of prejudiced discrimination on the cornerstone of sex at the Sabrimala Temple.
 “The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.[2]

Transformative Constitutionalism

The concept of transformative constitutionalism has at its kernel a pledge, promise and hirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution.[3]
The concept of transforming the Constitutional value penitently encapsulates two notions: transformation and constitutionalism, which have been fused into a single notion- transformative constitutionalism. In simple terms, “transformation” is bringing about change in a structured way. “Constitutionalism”, on the other hand, means cohering to a constitutional system of government.[4] The expression can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day[5].
It is the South African experience that had initially prompted legal scholars to take note of the concept of Transformative Constitutionalism. It was due to Karl Klare[6] , a United States Scholar’s efforts that the discussions upon the concept was ushered in.  In his words, transformative constitutitonalism signifies, “a long-term project of constitutional enactment, interpretation, and e
nforcement should be committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.” 
This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. This is the core idea of transformative constitutionalism: that we must change.[7] The German Jurisprudence also reflected similar ideas about the Transformative narrative of the Constitution. Anlogous to the experience of South Africa and Germany, an acknowledgment of India’s own history of institutionalized polarity prompted the Judiciary to invoke the notion of Transformative Constitutionalism.
In India, the principle proponent of this view in the judiciary has been Justice Krishna Iyer and Justice D.Y. Chandrachud. In the locution of Justice D.Y. ChandrachudThere is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them.” [8]
The transformative power of the Constitution, however, is not viewed as just a means to correct historical wrongs. Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant. This is perhaps the ultimate vision of a transformative Constitution. [9] The above articulation draws inference from the Constitutional Assembly debate, wherein, B.R Amedkar, emphasisingly remarked that: “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”
In the following celebrated verdicts, the Apex Court has viewed the Constitution as not merely an amalgam of parchment that guarantees against state excesses, but as a document embodying a vision of a fairer, more inclusive and more progressive society.

The Verdict of Section 377

Encapsulating the spirit of the Victorian virtues, Section 377, a colonial law, chastised and penalized ‘…carnal intercourse against the order of nature with any man, woman or animal…’ According to the section, anything that was not penal-vaginal sexual encounter was “against the law of the nature” and as a corollary “unnatural” and felonious.[10] Disturbingly, consensual homosexual acts between adults were also prey to this section. Arresting and detaining homosexuals for supposedly committing a crime under Section 377 was a prevelant customary practice for years.
Therefore, when the court on 6th September 2018 unanimously declared Section 377 to be violative of the Constitutional mandate, it was nothing short of rapturous euphoria for the entire nation, predominantly the LGBT Community who fought relentlessly against the eternal injustice tendered to them. However, the celebrated pronouncement was groundbreaking in many more ways than just restoring the rights of the LGBT Community. It played a significant role in re-instilling the aspirations of the Indian Constitution. The Judgment canvassed the concepts of individual identity and how Constitutional morality should prevail over popular social morality. It also refreshed the notion of Transformative Constitutionalism which was long forgotten as a relic of a bygone age. This article seeks to revive the buried notions of the Constitution highlighted by the distinguished Coram of the Section 377 judgment.

 “the ultimate goal of our magnificent constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution.”[11]

The cardinal notion behind the epoch-making pronouncement of Section 377 was Transformative Constitutionalism. While deliberating on the constitutionality of the section, the Court was deeply reflective about the fact that for a right to acquire a meaningful purpose, regulating State action alone will
not suffice. Not known for mincing its words, the Apex Court threw light on the “silence and stigmatization” attached to the LGBT community by the society. Advocating vigorously, the Court opined that inequality, hierarchy and prejudice transpires as much from the societal sanction, communal conventions and individual notions as from the state.  In the backdrop of such materiality, the Court profoundly mused that the mandate of the Constitution is not to be cramped towards regulating the relationship between the State and an individual, rather the Constitution has an equal, if not a paramount role in fostering the normative spirit among the individuals within a society. 
[12]
Tracing a nascent origin to the concept of transformative constitutionalism, the Apex Court quoting its own earlier pronouncements observed that the “ Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social-science approach, not by pedantic, traditional legalism”.[13] Citing several judgments from South Africa which is known as the birth land of Transformative Constitutionalism, the former CJI further elaborated the said concept.[14] The elucidation of the term reached new heights when Justice Chandrachud while dealing with Transformative Constitutionalism in the context of section 377 of the IPC stated: “In its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender. In dealing with these issues we confront much that polarizes our society. Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time.”
The court discovered that the Indian Constitution envisages and actively seeks to promote social changes within the contours of the Constitution. It solicits transformative reforms “in the order of relations not just between the state and the individual, but also between individuals”.[15] The revamping potential of Indian Constitution is a conscious ‘attempt to reverse the socializing of prejudice, discrimination, and power hegemony in a disjointed society’.[16] 
Eventually, the court, by decriminalizing the abominate law, conjucted inviolably that the Constitution obliges the individuals to act in a manner that would transform the society and foster and promote the virtues embodied in our Constitution.

The Sabrimala Verdict

Following the precedent set by the above verdict, the Apex Court delivered another pioneering judgment, thereby permitting the women folk to enter the temple which was kept shut for their worship since time immemorial. To the uninitiated, this case pertains to diverse petitions lodged against the ban on the entry of menstruating women inside the holy temple.
It is an undisputed gospel that the Ayyappa temple in Sabrimala region of Kerela happens to be one of the most renowned pilgrimage site for the Hindus all around the world. Every year, millions of people undertake this holy trek to the hill temple to offer their veneration to the Deity. The Temple, however, does not open its portal to women of menstruating age. The rationale behind this is the celibate status of Lord Ayyappa. Therefore, women who were regarded “impure” were prohibited from entering the temple, on the pretext that they would disrupt the celibacy of the Deity. Naturally, these notions invited protests and disputes from several corners of the Country.
Ergo, when the Apex Court with a ration of 4:1 decreed the renowned verdict permitting women folk of all ages to enter the Temple, it was nothing short of a eureka moment for the citizens who toiled since 2006. The Majority comprising of         the then Chief Justice Dipak Misra,  Jusitce R. F. Nariman, Jusitce A. M. Khanwilkar and Justice D. Y. Chandrachud held that “when a man can enter, a woman can also go. What applies to a man, applies to a woman also”. Crucial consideration was placed upon the notion that the right to enter temple cannot be dependent on a legislation, it is a gift of the Constitution.
Rejuvenating the concept of constitutional morality, the Court propounded that “Religion cannot be cover to deny women right to worship. To treat women as children of lesser God is to blink at Constitutional morality.”
Reproducing the words of Justice Dipak Misra, the primary drive behind the formidable verdict was the consideration that “A woman is not lesser or inferior to a man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in
freedom for faith. Religion is basically a way of life”. This verdict also rejected the age old test of essentiality, calling it a “problem with our jurisprudence”.
The most notable observation was made by Justice Chandrachud wherein he opined that,  “Our conversations with the Constitution must be restructured to evolve both with the broadening of the content of liberty and dignity and the role of the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving individual dignity……If we are truly to emerge out of the grim shadows of a society which has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future.”
The Indian constitution, is based upon the principles of justice, liberty, equality and fraternity and therefore all constitutional provisions including the freedom of religion, must be interpreted in such a way that Individual dignity must be upheld.[17] Thus transformative constitution can simply mean that the law is transformed through a statute by enacting a new law in place of preceding one in order to bring radical change; Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action that could not be regarded as transformative of the content of law[18].

Constitutional Morality

“Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”[19]
Apart from reinstating the values of Transformative Constitutionalism, the celebrated judgments also threw light on the concept of Constitutional morality, terming it as a ‘guiding spirit’ to achieve transformation within the society. Illuminitating the view embraced by Dr. B.R Ambedkar, the court identified Constitutional morality in its most pristine form as capsulating the notion of ‘diversity’ and ‘inclusiveness’. Therefore, law and in this case Section 377 and the Sabrimala Temple restrictions which perpetuated discrimination and bred inequality towards a certain social class, even if endorsed by ‘public/social morality’, failed the test of constitutional morality.[20] Justice D.Y. Chandrachud while delivering the verdict of Sabrimala, applied the concept of “Transformative Constitutitonalism” to end the gender biasness and interpretated Article 25 in the light of constitutional morality. Thus, demonstrating an encouraging trend, courts have emphatically upheld rights of women to equality and freedom of religion, thus striking down the restrictions imposed[21].
Constitutional morality determines the cognitive attitude towards individuals and issues by the text and spirit of the Constitution. It requires that the rights of an individual ought not to be prejudiced by popular notions of society. Prohibiting homosexuality stemmed from the same stereotypes about gender roles that were responsible for sex discrimination. As a transformative document, the Indian Constitution’s “morality” was one of tolerance for different forms of life and diverse ways of living. Any law that deprives a community of equal moral membership of the polity, therefore, could never be constitutional.[22] The judgment rightly upheld constitutional morality over social and popular morality to ensure that the deprived souls are not thrown into oblivion by regressive enactments which as Justice Chandrachud notes, “is an anathema to the constitutional guarantee of equality, liberty and fraternity.” The purpose of having a constitution is to transform the society[23] and to embrace to ideals of liberty, equality and fraternity as rightly observed in the judgment. [24]

Individual Identity

“The natural identity of an individual should be treated to be absolutely essential to his being”[25]
The great German thinker, Johann Wol
fgang von Goethe, had once said, ―I am what I am, so take me as I am; Shakespeare, the world’s greatest dramatist conveyed through his play―What‘s in a name? Sans identity, the name only remains a denotative term.
[26] Ergo, the identity is pivotal to one‘s being. The unanimous verdict of Section 377 is build lucidly upon this principle. Individual indentity is protected by our constitution in various ways by granting equality before law,[27] prohibiting discrimination on ground of religion, race, caste, sex or place of birth[28] and by vowing to protect the life and liberty of individuals.[29] 
Homosexuality is a natural phenomenon. Isolating a peculiar community based on a natural occurrence would amount to crushing the intrinsic dignity capsulized by the freedoms accorded by the Constitution of India. Constitutional identity cannot be confined only to one’s orientation. Such a narrow perception and limited recognition would keep the individual choice at bay. Our Constitution, above all, is founded on a vision of an inclusive society which accommodates plural ways of life. Thus the Apex Body rightly decriminalized the horrid enactment and re-instilled our faith in the Judiciary.
Moreover, substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses not only on distributive questions, but on the structures of oppression and domination which exclude these identities from participation in equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity.[30] The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism[31]. This is what makes the Sabrimala verdict a transformative one.

Revisitng Untouchability

If untouchability lives, humanity must die- Mahatma Gandhi
The removal of untouchability is one of the highest expression of Ahimsa. From the time immemorial, several great personalities have fought relentlessly to obliterate the practice of untouchability. This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. While the rest of the fellow Justices rejected he argument pertaining to untouchability limiting it to a caste-based untouchability, Justice Chandrachud made a detailed analysis of the constituent assembly debate and held that, “untouchability is not merely restricted to caste, it is the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well.[32] This compels us to delve deep into the struggle for social emancipation. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. Thus, the Constitution, in essence represents the aspirations of those, who were denied the basic ingredients of a dignified existence.[33] 
The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle for social reformers and revolutionaries. It is an attempt to mae reparations to those, whose identity was subjugated by the society.[34] Purity and pollution constitute the core of unthoucability.[35] And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Thus, the Hon’ble Justice was fair in addressing the pressing issue of untouchability which is otherwise considered as a taboo topic.

Various other instances of Transformative verdicts

Similar observations are found in the Supreme Court’s 2018 judgment that decriminalised adultery. While quashing this erstwhile Indain adultery law, the Supreme Court observed, “The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity…Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens.”[36]. This archaic law was struck down as it was held to be discriminatory, arbitrary and violative of a woman’s dignity and agency.
In Puttaswamy & Anr. v. Union of India[37], the court, by taking refuge under the transformative nature of the constitution held that the absence of an express constitutional guarantee of privacy does not necessarily warrant that there is no protection of privacy under the framework of protected guarantees under Article 19 and 21. Thus, an invasion of privacy must be fulfilled on the basis of a law which stipulates a procedure which is fair, just and reasonable. This judgment re-shaped the ambit of fundamental rights through transformative constitutionalism.
Similarly, in 2013, the then Chief Justice of India Altamas Kabir and Jusitce SS Nijjar sympathetically reflecting on the plight of the dancers held that, [38] “Depriving a person of their right to dance and earn a livelihood violated the fundamental right to freedom of speech and expression and most importantly, violated Article 21, the right to life, which includes the right to livelihood. The courts cannot endorse such blatant injustice towards women who are at the lowest rung of the dance bar industry… Even a bar dancer has to satisfy her hunger, provide for her family and meet her day-to-day expenses.”[39].
Conclusion
This vision of the constitution being a transformative document finds concrete expression in two ways. First, by the fact that it transformed the relationship between the individual and state from one between colonial rulers and their subjects to citizens of a republic with full panoply of civil and political rights. Secondly, by the fact that the Constitution enabled, to quote Bhatia’s felicitous phrase, a “thoroughgoing reconstruction of State and society itself”.
The primary impetus of our Constitution is to transform the society for the better and to guide the nation towards a glorious future. This is attainable only through transformative Constitutionalism. At the core, transformative constitutionalism teaches us not to be content with the status quo.[40] Although, there is often a fear of revolution in the recognition of transformation but such fear can be unraveled through collective efforts[41]. Transformative constitutionalism aims to rebuild society on new principles and humane conditions.
However, the question which is prevalent in everyone’s psyche is; what lies ahead? Beacause, decriminalization of Section 377 or the opening of the Sabrimala temple were, after all, a distinct cases. The illustrious bench itself had acknowledged that there is much work to be done ahead. It would be interesting to witness as to how these freshly retrived concepts of Constitutional morality and Tranformative Constitutionalism comes play in the forthcoming decisions of the Indian Judiciary.

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[1] Saurabh Chaudri and Ors. v. Union of India and Ors., (2003) 11 SCC 146.

[2] Justice A.M. Khanwilkar in Navtej Singh Johar and Ors., v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petiton (Criminal) No 76. Of 2018.

[3] Naz Foundation v. Government N.C.T. of Delhi, 160 DLT 277.

[4]  Justice SM Mbenenge Judge President: Eastern Cape Division of the High Court, Transformative Constitutionalism: A Judicial Perspective from the Eastern Cape, Public Lecture delivered at the Nelson R. Mandela School of Law, University of Fort Hare on 17 April 2018, Volume 32 No 1 (2018), ISSN 2523-2177, <http://www.saflii.org/za/journals/SPECJU/2018/13.pdf> Accessed on 11TH  February, 2020 at 9.05 pm.

[5] Road Accident Fund and Anr. v. Mdeyide, 2008 (1) SA 535 (CC).

[6] Karl Klare, Legal Culture and Trasnformative Constitutionalism, 1998, South African Journal of Human Rights.

[7] Justice Pius Langa, former Chief Justice of South Africa, 2 P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351.

[8] B.K. Pavitra v. Union of India, Civil Appeal No. 2368 of 2011.

[9] Justice Pius Langa, former South African Chief Justice, 2 P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351.

[10] Kanad Bagchi, “Decriminalizing Homosexuality in India as a matter of transformative Constitutionalism”, Verfassungsblog, 9th September,2018,<https://verfassungsblog.de/decriminalising-homosexuality-in-india-as-a-matter-of-transformative-constitutionalism/>, Accessed on 25th July, 2019 at 9.05 pm.

[11] Navtej Singh Johar and Ors., v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petiton (Criminal) No 76. Of 2018, Para 95.


[12] Supra Note 10, Accessed on 25th July, 2019 at 9:30 pm.

[13] State of Kerala and Anr. v. N.M. Thomas and Ors., AIR 1976 SC 490.

[14] Road Accident Fund and Anr. v. Mdeyide, 2011 (2) SA 26 (CC); President of the Republic of South Africa v. Hugo, 1997 (4) SA 1.
[15] Navtej Singh Johar and Ors., v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petiton (Criminal) No 76. Of 2018.

[16] Supra Note 10, Accessed on 28th July, 2019 at 4:03 pm.

[17] D.Y. Chandrachud in Indian Young Lawyers Association v. State of Kerala, Writ Petition (Civil) No. 373 of 2006.

[18] Goutham Shivashankar, “Parliamentary Privileges, The Legislature, Tranformative Constitutionalism”, Aug 1 2018, <https:// indconlawphil. wordpress. com/2018 /08/01/guest-post-parliamentary-privileges-and-the-transformative-constitution-a-response-to-karanlahiri/> Accessed on 10th February, 2020 at 9.05 am.

[19] Naz Foundation v. Government N.C.T. of Delhi, 160 DLT 277.

[20] Supra Note 10, Accessed on 27th July, 2019 at 4:09 pm.

[21] Ruhi Bhasin. Sabarimala and Women’s Entry: Need for a Ban on the Ban. 2016, January-June.

[22] Gautam Bhatia, Indian Supreme Court Decriminalizes same sex-relations, Oxford Human Rights Club- A Global perspective on Human Rights, <http://ohrh.law.ox.ac.uk/indian-supreme-court-decriminalizes-same-sex-relations/>, Accessed on 27th July, 2019 at 10:34 pm.

[23] Dipak Misra, former CJI in Navtej Singh Johar and Ors., v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petiton (Criminal) No 76. Of 2018.

[24] Ajita Banerjie, Transformative Constitutionalism: Indian Supreme Court upholds Constitutional Morality by reading down Section 377, Oxford Human Rights Club- A Global perspective on Human Rights, <https://ohrh.law.ox.ac.uk/transformative-constitutionalism-indian-supreme-court-upholds-constitutional-morality-by-reading-down-section-377/>, Accessed on 27th July, 2019 at 11:27 pm.

[25] Navtej Singh Johar and Ors., v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petiton (Criminal) No 76. Of 2018.

[26] Id.

[27] INDIA CONST. art. 14.

[28] INDIA CONST. art. 15.

[29] INDIA CONST. art. 21.

[30] Indian Young Lawyers Association v. State of Kerala, Writ Petition (Civil) No. 373 of 2006, Para 117.

[31] State of Kerala and Anr. v. N.M. Thomas and Ors. AIR 1976 SC 490.

[32] Supra Note 30, Para 73.

[33] Supra Note 30, Para 74.

[34] Supra Note 30, Para 75.

[35] Supra Note 30, Para 76.

[36] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.

[37] K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1;MP Sharma v. Satish Chandra, AIR 1954 SC 300; Kharak Singh v. State of Uttar Pradesh and Ors, AIR 1963 SC 1295.

[38] State Of Maharashtra & Anr. v. Indian Hotel & Retaurants Assn. and Anr., Civil Appeal No .5504 OF 2013.

[39] Priyanka Mittal, Abhiram Ghadyalpatil, “SC order gives Maharashtra dance bars fresh lease of life” Updated: 18 Jan 2019, 08:58 AM IST <https:// www. livemint. com/Home-Page/ w4wug1Ag OThCXBjoWUfrZM /SC-relaxes-stringent-restrictions-on-Maharashtra-dance-bars.html> Accessed on 09th January, 2020 at 11:27 pm.

[40] Justice Pius Langa, former South African Chief Justice, 2 P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351-360 353.

[41] Drucilla Cornell,Kenneth Michael Panfilio, “Symbolic Forms for a New Humanity: Cultural and Racial Reconfigurations of Critical Theory”, ISBN-13: 9780823232505, Published to Fordham Scholarship Online: March 2011 DOI:10.5422/fso/9780823232505.001.0001 <http:// fordham. universitypressscholarship. com/ view/10.5422 /fso/9780823232505.001.0001/upso9780823232505-chapter-7> Accessed on 09th January, 2020 at 11:09 am.

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