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Right to Religion in a Secular State

Secularization is a term which was founded in the 1648 post the end of the thirty-year war in Europe. It was a term used synonymous with the idea of progress and is used in a positive connotation. Secularist is a person who can be described as the one whose morality is based on the mankind's well-being and this is done by him without paying attention towards religion, forms of worshipping as well as the religious system itself. He believes that religion should not be a part of the public education or even in the public affair's management.

In comprehensive words, secularist is a person who doesn't accept any kind of worship, faith, influence and even religion.[1] The certain meaning of secularism may be a principle having religious morality, and tolerance which is true in nature and there is freedom to faith as well as religion which is available to all the citizens of the country irrespective of their nationality, caste, creed, ratio, gender, faith, color, sect and other conditions of faith.[2]

A secular state is often defined as the state which provides assurance to its subjects both individually as well as collectively i.e. interest of even the minorities are equally important for the state like the majority.

The constitution of a secular country in words of D.E. Smith is not attached to any particular religion nor does it promote or devote itself to a given religion and on the contrary, in its eyes, all the religions are at par and even if its citizen chooses not to profess any religion, the rights of such a citizen are protected like any other. In a secular state, the religion cannot be used to define the state and the rights available to a citizenship is not affected by individualistic religious beliefs. [3]

There are three main notions which provide a dimensional view about secularism. The first one is religious freedom which means that an individual has the freedom to discuss as well as consider the relative claims of others from the differing religions and decide on this without any state interference since the religious beliefs of a person cannot be dictated by the state.

The second one is citizenship; the people who are the citizens of the state are considered so without any biases based on religious beliefs and practices and in describing the terms of the citizenship of the state, religion is immaterial.

The third one is the separation of religion and state and according to this the functionality of the state is to be treated differently from that of religion and the affairs of both cannot be intermingled. The function of the state if not to promote any religion but to protect the beliefs and practices of all without any bias. [4]

Research Objective
  • To analyze and comprehend the definition of secularism.
  • To analyze the role of the state in right to religion in a secular state.
  • To analyze the role of political parties in a secular state.

Research Methodology
The method of research which has been used by the author is the Doctrinal and Descriptive Method of research in which the author has referred to various sources which are mostly legal prepositions and author read a variety of literature on the given topic of research from various sources including the Articles from online sources as well as the newspapers, Books, Journals and other online sources. The author by reading the variety of literature gained an insight on the topic and got a clear perspective which assisted the author to submit a research project which is reliable.

Research Scheme/ Chapterisation
The research project titled "Right to Religion in a Secular State" beings with an Introduction which basically defines the necessary terms like secular, secularist as well as a secular state along with briefing on the basic principles which are associated with a secular state. These terms would be useful in understanding the context of the research paper. The project is divided into Three Chapters.

The first one is about what is secularism and it gives the various principles that need to be satisfied before a state is called secular. It also helps us understand the relationship between the right to religion and a secular state. The second chapter is about the protection of religion in a secular state which talks about how a secular state protects the religious interests of an individual or a group.

The third chapter talks about the role of political parties in a secular state and how they are sometimes a threat to secularism of a state. This is followed by a conclusion which sums up the entire research paper by providing the main ideas that have been discussed so far along with other major ideas on the topic. Lastly, there is bibliography which mentions all the sources which have been used to make the research project.

Link Between A Secular State And Right To Religion

Most of the countries in the world today have a secular system while some still choose to continue a non-secular system. There are a wide variety among the secular states as well since some show and have a very high commitment towards the secularism while some show a neutral approach towards the secularism though they accommodate with the requirements of the high level of cooperation which is required by a secular state.[5]

It is quite a tedious task to define the term secular the same way it is to define religion since both the terms bring about the opposite terms of the social space and this is also because both the terms are the negative of one another. There are four principles which are the constituents of a secular model of state. These include the m0ral equality 0f pers0ns, liberty to a religion and conscience, neutrality of state towards religion and the Church and State's separation.

The nature of the state is dependent upon what feature is more prominent and how it is being interpreted by the state. The primary step which is required to be taken when a framework needs to set up for a secular state is to give a meaning to i.e. define the term secularism itself. For this the state needs to evaluate the various definitions of the term and then agree upon the one which is to be adopted by the state in the framework[6]. [7]

There are two major patterns for providing the term secularism with a proper definition. In the first model, secularism is considered the end in itself and in this secularization is in its harshest form and is followed quite rigidly. In this it can go to the extent of repressing and even persecuting religion which was the case in the communist bloc.

It is quite ironic since the countries with the 'rigid' or 'strict' are more towards the concept of neutrality instead of the liberty to follow a conscience or religion and this would be done by an attempt to demote the religious practices by leaving the public sphere and relegating it to the private one. When greater prominence is placed on the protection of conscience and religion, then it is the more flexible form of 'secularity'[8].

The states which are considered confessional haven't been able to exclude themselves from both the internal as well as the external i.e. international talks concerned about the ideal methods to constitute the relationship between state and religion which in fact satisfies the principle that no system is a static one. For the developed secular states, the principle issue is whether they should focus more towards secularity or secularism.[9]

There is no religion with majority at the global level and the countries which had homogeneity relatively, adherence to the dominance of the principle religion is declining but one should always remember that there won't be withering away of religion and it's going to stay here only. The religions which have been traditionally been present still hold a significant place but there has been rise in the pluralization of religions.

The traditional religions hold the primary place because of their deep roots as they were the key players in the shaping of the country's history and the preservation of the national identity. Notwithstanding their dominance the prevailing religions have discovered ways for to strengthen societal position but the consequence of this is often the identity politics coloring the religious rights which further results into security concerns[10].

Majority of the population of the world lives in countries with severely high level of restrictions and this is quite problematic because the basic human rights are being deprived to the people as it is the fundamental right of a person to have religious freedom. Low level of restrictions are desired because it is often observed that low level of restrictions are associated with higher level of human rights protection, with better education as well as health facilities for both men and women, with higher per capita income, higher literacy rates and even lower level of conflicts in the society.

Social capital is generated by religious freedom because it corelates with greater religious engagement and it is beneficial for the society as well. High level of restrictions by the government result into heightened societal violence. Therefore, it can be said that restraints on religion are more likely to be an outcome of secularism rather than secularity and secularity maybe beneficial socially. [11]

An aftermath of World War II was the codification of the International Human Rights and an axiomatic feature of this regime was the freedom of religion and belief. This was envisaged in the Article 18 of the Universal Declaration of Human Rights as well as the same Article of the ICCPR which is an abbreviation of International Covenant on Civil and Political Rights and this is nor the end of the list as it was there in a variety of international codifications other than the above mentioned. [12]

In the recent years, a new term has been coined by the secular states which is a category of "Religious Status System" which was established for addressing the multiple religion recognition among the various legal systems. Tolerant is the impulse which leads to this system and the objective is the recognition as well as the respect of various religious norms and practices which are prevalent in the nation be it in minority or majority. But this system has not proved out to be of any good like the others because it also leads to various complications within the nation[13].

An example with respect to India is that of the provision of the Uniform Civil Code (UCC) which was supposedly to be adopted post partition but it has not been enacted even after 73 years of independence and each person is governed by their personal laws in matters such as marriage, adoption, divorce etc. and a person can choose how he/she wants to be governed w.r.t their personal laws. The interference in the personal matters of the religion by the government has resulted in huge conflicts between the religions. Sabrimala Conflict where women were given right to enter the temple, Babri Masjid Demolition (Ayodhya verdict), ban on Triple Talaq are some of the primary instances of the ethnic conflicts in our nation which were caused due to the intrusion by law. [14]

In a secular state, the most prevalent model is the cooperation model which is widely accepted form in most of the nations. The interfaith dialogue which can be synonymous to cooperation is the positive as well as a constructive interaction among the individuals of separate religious faiths and traditions but in India the model which is followed is that of "positive conception of equal treatment" and also secularism which is excluding the separation wall. Both these models are quite similar to each other and the model in India can considered to be a part of the cooperation model because the latter is a much wider concept than the Indian version of this model[15]

A secular nation should always accommodate the cooperation model because the fundamental point of such a nation is the protection of the religious freedom of the people while observing an equal rather than a neutral or preferred approach towards the rights of people. No religion should be given a superior treatment over other and for the state, each person should have the same rights and no discrimination ought to be done based on religion. The state should be flexible to incorporate the various religious groups and respect their way of life and traditions as well. In a secular state, there is willingness to cooperate by the state and the state also extends aid and assistance to the communities when they are in need.[16]

Secularism is of various types as well.

The first is the Neutral Secularism in which the state does not support any religion and is explicitly non-religious. It chooses not to intervene in nay religious matter and there is a clear wall between the state and the religion.

The second is the positive secularism in which it can be said that the state does not as such support any religion and does not affirm with any religious beliefs or practices but it creates an environment in which the conditions are constructive for the religions in general.

The third is the negative secularism in which the state is not capable or competent enough to interfere in the matters which are related to the religion but the state should not act in such a way because it can be dangerous to the common good of the nation. The fourth is the inclusive secularism which can said to be the most ideal form of secularism because the neutrality approach is not followed and the state is not run by the ideology of a particular religion in law making but there is an equal representation and involvement of the different faith groups which must be inclusive of the non-religious groups as well. Therefore, it can be said that the term 'secularism' cannot be defined in a single definition. [17]

Protection To Religion In A Secular State

When India gained independence from the British Raj in 1947, the main concern for our government was about the religious identity of the country since India was separated from Pakistan based on religious identity. Pakistan was to be a Muslim country but this was not the case with India because a majority of Muslim population was still there in India itself and there were other religions such as Sikhism, Buddhism, Jainism and Christianity as well therefore India could not be declared a Hindu nation and to protect this identity and interests of people of our nation the Congress government lead by Pt. Jawaharlal Nehru came upon the conclusion that India was to be a secular nation and there would be no religious based discrimination in the country and all the people were to be equal. Everyone was to have equal rights and the communities had a right to freely practice and profess their religion.[18]

In India, the Right to Religion is protected by the Constitution of India when post the 42nd Amendment, the word secular was added to the Preamble of the Indian Constitution thus making it a fundamental right of a person. Article 25 to 28 in the Constitution of India provide the right to freedom of religion.

The meaning given to secularism by the Apex court was in the landmark case of Ahmedabad St. Xavier's College v State of Gujarat [19]where it was held that being a secular nation neither means pro-god or anti-god but the fact that no one is to be discriminated or differentiated on the basis of the religion one practices. In the case of S.R. Bommai v Union of India[20], the Supreme Court of India elucidated that secularism does not make a nation atheist rather it means that the society is heterogeneous and no religion is favored and no one is discriminated on religious basis and the aim of such a nation is of providing equivalent status to all[21].

There are basically two models which are followed by the government in a secular state and the same can be explained by the example of USA and India. In India, there is a concept of 'Positive Role' and 'Neutrality' and the state has the capacity to introduce religious reforms, formulate policies for religions and protect minority[22] while in USA, there is a policy of non-interference in the religious matters and the state cannot take any sort of action in a matter related to religion since there is a clear demarcation between Church and the State. India advocates the principle of Sarva Dharma Sambhava which is equivalent respect for all religions while in the US, the State works autonomous of religion.[23]

In India, Right to Religion is a Constitution right under Article 25-28. Article 25 grants the liberty to practice and propagate, and freely profess any religion and it is given to every person of the country. The Supreme Court has given it's understanding on this article in the judgement passed in the case of Ratilal Panachand Gandhi v State of Bombay[24] where it was held that Article 25 extends to all persons and not just the citizens of our country. The citizens have a right to practice their religion but certain limitations can be imposed by the state if necessary.[25]

The freedom of conscience does not be necessarily be in connection to a given religion, faith or God but it protects the conversion of a person to another religion without their will and consent. The meaning of practice, profess and propagate were given in the case of Stainislaus Rev v State of MP [26]and The Commissioner Hindu Religious Endowments madras v Sri L T Swamiar of Sri Shriur Matt[27]. Article 25 does not protect every religious performance but only the ones which are integral for a religion[28].

Article 26 promotes the freedom for managing religious affairs and this is available to the religious denominations but this has to be in accordance with the public order, health as well as morality because they are very crucial for the mankind and cannot be unseen for religious purposes. Under this article, there is a right available for the maintenance of religious as well as charitable purposes. It manages the affairs in matters where religion is concerned and also this article gives that the right to acquire and administer the moveable and the immovable property with respect to the law[29].

The meaning of the religious denomination was given in the judgement of the Apex court in the case of SP Mittal v Union of India where it was said that religious denominations need to satisfy three conditions which are common faith of the individuals along with a common organization and the designation was to be a distinctive name. [30] Examples of religious denominations are Shaivism, Vaishnavism within the Hinduism and Shia and Sunni in Islam.[31]

Article 27 is the protection of a person from the forceful tax payment and proceeds which are for the maintenance or promotion of any particular religion or a religious denomination.[32] But this article is not applicable where the state charges a fee for the maintenance of the religious institutions and this was given in the case of the Commissioner Hindu Religious Endowments Madras v Sri LT Swamiar of Sri Shriur Matt[33].

Under Article 28, the freedom from religious directive which is given in the educational institutions maintained wholly by the funds of the state[34]. The moral instructions which are given in the educational institutions are not prohibited under this article because there is a difference between moral and religious instructions. This was the given in the case of Nambudripad Kidangazhi v State of Madras[35].

Religion And Politics

The relationship between politics and religion continues to be a very crucial theme in the political sociology and even though there is a clear separation between the state and the religion, politics and religion cannot be separated. One of the main illustration is that during elections, the agenda of the political parties are quite religion based and the one which supports the majority religion is usually the elected party.

Religion based agendas for campaigning during election has helped the political parties to gain the required attention and which has often resulted in dirty politics across the nation as it forms a religious division among the population of the country.[36]

In India, secularism was devolved in the political indulging post the independence itself when the Indian National Congress led by Jawaharlal Nehru gave a secular identity to the nation and the primary ideology behind this was the religious diversity of the country. During that time, the Hindu Communalism was the main enemy of secularism in India and there were certain parties who were advocated of this communalism.

One such group was the Rashtriya Swayamsevak Sangh (RSS) with whom Nathuram Godse, the man who assassinated Mahatma Gandhi because he was not supportive of the idea of Muslims getting equal representation in the country. Such groups have from time to time in the history as well as in the present times proved to be dangerous to the secularism of the nation. Nehru was against all kind of communalism and he despised the idea of one religion nation and this led to the formation of other political group who were religion based.[37]

The idea behind secularism in India is not just about the religious freedom or abstaining of government from intervening in the religious matters. It is rather the decisive intervention of the state in the religious affairs (in certain cases) like the abolition of child marriage, widow remarriage, dowry prohibition, banning of animal sacrifices, accessibility of entry in temples to Dalits. This has aided in achieving the objective of right to religion as due to this the religion becomes a part of life for all and ones religion does not hurt the sentiments of other. [38]

Conclusion
Secularism is very important in a state for providing Right to Religion to the population of the country. Right to religion is a basic human right and is now being recognized across the world. There should be an approach of cooperation as well as neutrality and the sentiments of other religions should be kept in mind.

The intervention by the state should not be required unless there is a matter of morality and public order. There should be the acceptance of the principle of non-discrimination. Secularism can said to be the best assurance to the freedom of religion and the protection as well.[39]

Secularism has turned out to be an influential and a significant worldview in itself because it has entirely changed the way of thought process about the state and religion. But this should be kept in mind that the culture which is dominant in the society is the one which has a religious majority. Religion has always been a fundamental fragment of the society.[40]

Secularism is concept which is good in many ways but there are three benefits which are of the utmost significance. Firstly, secularism is the protector of the freedom of religion, belief, practices and conscience of the people in a nation but adopting the approach of neutrality among them. A secular state promotes neither religion nor atheism.

Secondly, the religious people are allowed to for the whatsoever next world they have faith in based of their religious beliefs i.e. they are allowed to perform the last rites according to their own rituals.

Thirdly, a liberal democracy can be built by laying a foundation stone of human rights combined with secularism which can be used to curb threats such a communalism, totalitarianism and ideological fascism as well.

The happiest nations in the world including the northern European states and the Scandinavian countries have a secure liberal democracy and this has further helped these nations be in the top in all positive aspects. Secularism has become crucial not just for freedom of religion but the definition has a much more meaning to it in the modern world because it is now associated with the overall development index. The world is moving towards secularism and hence providing the people with their right to religion because it is a basic human right and it needs to be both accepted as well as respected by the state. [41]

Bibliography
Articles (Constitution of India)
  1. Article 25
  2. Article 26
  3. Article 27
  4. Article 28
Cases
  1. The Ahmedabad St, Xaviers College Society and Anr v State of Gujarat 1974 AIR 1386, 1975 SCR (1) 173
  2. S.R. Bommai v Union of India 1994 AIR 1918, 1994 SCC (3) 1
  3. Ratilal Panachand Gandhi v State of Bombay 1954 AIR 388
  4. Stainislaus Rev v State of MP 1977 AIR 908
  5. The Commissioner Hindu Religious Endowments madras v Sri L T Swamiar of Sri Shriur Matt 1954 AIR 282
  6. SP Mittal v Union of India 1983 AIR 1 1983 SCR (1) 729
  7. Commissioner Hindu Religious Endowments Madras v Sri LT Swamiar of Sri Shriur Matt 1954 AIR 282
  8. Nambudripad Kidangazhi v State of Madras AIR 1954 Mad 385
Books
  1. S.M.A.W Chishti's, "Secularism in India: An Overview" (June 2004) Indian Political Science Association
  2. W. Cole Durham and Brett G. Scharffs's, "Religion and the Law: National, International and Comparative Perspectives" Wolters Kluwer Law and Business, 2010
  3. Larry Collins and Dominique Lapierre's, "Freedom at Midnight" (1975) 2nd edn
Newspaper Articles
  1. Javier Martinez-Torron and W. Cole Durham Jr's, "Religion and the Secular State" (July 2015) Publishing Service of Complutense University Law School
  2. Catherine M.A. McCauliff's, "Religion and the Secular State" (2010) pp. 35 Oxford University Press
  3. Janet Epp Buckingham's, "The Relationship between Religions and Secular Society" (2012) Ontario Human Rights Commission
  4. W. Cole Durham and Elizebeth A Sewell's, "Definition of Religion" 2006, Durham: Carolina Academic Press
  5. Shabnum Tejani's, "Indian Secularim: A Social and Intellectual History 1890-1950" (2007) Permanent Black
  6. Kerstin Jacobsson and Jonas Lindblom's, "Secular Religion", The Amsterdam University Press (2016) pp78,79
  7. Roger Finke and Brain J Grom's, "The Price of Freedom Denied: Religious Persecution and Conflict in the 21st Century" 2011 (Cambridge University Press)[1] Article III, American Declaration of Rights and Duties of a Man, O.A.S. res.XXX
  8. Sumit Paul Chaudhary's, "Tomorrow's Gods: What is the Future of Religion?" August 2, 2019 BBC Future
  9. Ashutosh Varshney's, "Ethnic and Religious Conflicts in India" Feburary 11, 2010
  10. Ruairi Nolan's "Religious Cooperation and Peace" (Nov 30, 2009) Peace Insight
  11. SMITH, DONALD EUGENE. India as a Secular State. Princeton University Press, 1963. JSTOR,
  12. Diva Rai's, "Freedom of Religion under the Indian Constitution" (May 20, 2019) iPleaders
  13. Tom Rosentiel's, "Religion and Secularism: the American Experience" December 3, 2007 Pew Research Center
  14. Rashi Sharma's "Religious Denominations under the Indian Constitution" (November 2, 2018) iPleaders
  15. Chris Eberle's, "Religion and Political theory" (Oct 2, 2008) Stanford Encyclopedia of Philosophy
  16. Christophe Jaffrelot's, "The fate of Secularism in India" (April 4, 2019) Carnegie Endowment for International Peace
  17. Rajeev Bhargava, "What Is Secularism For?" in Rajeev Bhargava, ed., Secularism and Its Critics (New Delhi: Oxford University Press, 1988)
  18. Michael Nugent's, "A Secular State Is Best for Religious and Atheist Citizens" (June 10, 2017) The Irish Times
  19. Brendan Sweetman's, "Secularism and Religion in Modern Democracies" (August 4, 2010) E-International Relations
  20. David Pollock's, "Secularism is Neutrality towards all Religion including Atheism" (July 7, 2011) The Guardian
End-Notes:
  1. S.M.A.W Chishti's, "Secularism in India: An Overview" (June 2004) pp.184 Indian Political Science Association
  2. Javier Martinez-Torron and W. Cole Durham Jr's, "Religion and the Secular State" (July 2015) Publishing Service of Complutense University Law School
  3. Catherine M.A. McCauliff's, "Religion and the Secular State" (2010) pp. 35 Oxford University Press
  4. S.M.A.W Chishti's, "Secularism in India: An Overview" (June 2004) pp.187 Indian Political Science Association
  5. W. Cole Durham and Brett G. Scharffs's, "Religion and the Law: National, International and Comparative Perspectives" Wolters Kluwer Law and Business, 2010, pp 115-116
  6. Janet Epp Buckingham's, "The Relationship between Religions and Secular Society" (2012) Ontario Human Rights Commission
  7. W. Cole Durham and Elizebeth A Sewell's, "Definition of Religion" 2006, Durham: Carolina Academic Press
  8. Javier Martinez-Torron and W. Cole Durham's, "Religion and the Secular State" (July 2015) Publishing Service of Complutense University Law School pp 2
  9. Shabnum Tejani's, "Indian Secularim: A Social and Intellectual History 1890-1950" (2007) Permanent Black
  10. Kerstin Jacobsson and Jonas Lindblom's, "Secular Religion", The Amsterdam University Press (2016) pp78,79
  11. Roger Finke and Brain J Grom's, "The Price of Freedom Denied: Religious Persecution and Conflict in the 21st Century" 2011 (Cambridge University Press)
  12. Article III, American Declaration of Rights and Duties of a Man, O.A.S. res.XXX
  13. Sumit Paul Chaudhary's, "Tomorrow's Gods: What is the Future of Religion?" August 2, 2019 BBC Future
  14. Ashutosh Varshney's, "Ethnic and Religious Conflicts in India" Feburary 11, 2010
  15. Ruairi Nolan's "Religious Cooperation and Peace" (Nov 30, 2009) Peace Insight
  16. SMITH, DONALD EUGENE. India as a Secular State. Princeton University Press, 1963. JSTOR,
  17. Janet Epp Buckingham's, "The Relationship between Religions and Secular Society" (2012) Ontario Human Rights Commission
  18. Larry Collins and Dominique Lapierre's, "Freedom at Midnight" (1975) 2nd edn
  19. The Ahmedabad St, Xaviers College Society and Anr v State of Gujarat 1974 AIR 1386, 1975 SCR (1) 173
  20. S.R. Bommai v Union of India 1994 AIR 1918, 1994 SCC (3) 1
  21. Diva Rai's, "Freedom of Religion under the Indian Constitution" (May 20, 2019) iPleaders
  22. ibid
  23. Tom Rosentiel's, "Religion and Secularism: the American Experience" December 3, 2007 Pew Research Center
  24. Ratilal Panachand Gandhi v State of Bombay 1954 AIR 388
  25. Article 25 of Constitution of India
  26. Stainislaus Rev v State of MP 1977 AIR 908
  27. The Commissioner Hindu Religious Endowments madras v Sri L T Swamiar of Sri Shriur Matt 1954 AIR 282
  28. Article 25 of The Constitution of India
  29. Article 26 of The Constitution of India
  30. SP Mittal v Union of India 1983 AIR 1 1983 SCR (1) 729
  31. Rashi Sharma's "Religious Denominations under the Indian Constitution" (November 2, 2018) iPleaders
  32. Article 27 of the Constitution of India
  33. Commissioner Hindu Religious Endowments Madras v Sri LT Swamiar of Sri Shriur Matt 1954 AIR 282
  34. Article 28 of the Constitution of India
  35. Nambudripad Kidangazhi v State of Madras AIR 1954 Mad 385
  36. Chris Eberle's, "Religion and Political theory" (Oct 2, 2008) Stanford Encyclopedia of Philosophy
  37. Christophe Jaffrelot's, "The fate of Secularism in India" (April 4, 2019) Carnegie Endowment for International Peace
  38. Rajeev Bhargava, "What Is Secularism For?" in Rajeev Bhargava, ed., Secularism and Its Critics (New Delhi: Oxford University Press, 1988)
  39. Michael Nugent's, "A Secular State Is Best for Religious and Atheist Citizens" (June 10, 2017) The Irish Times
  40. Brendan Sweetman's, "Secularism and Religion in Modern Democracies" (August 4, 2010) E-International Relations
  41. David Pollock's, "Secularism is Neutrality towards all Religion including Atheism" (July 7, 2011) The Guardian

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