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This article is written by Magizhini M of The Tamilnadu Dr. Ambedkar Law University, School of Excellence in Law, Chennai, an intern under Legal Vidhiya

ABSTRACT

The researcher aims to seek the importance of the independence of the judiciary and its significant relation to that of the principle of separation of power. There has been an analysis made on its importance with relevance to rulings where otherwise it would have been illegal for the ruling to cooperate with the changing social, legal, and political conditions. The judiciary is important for the establishment of peace and prosperity. The judiciary serves as the guardian of the constitution and the protector of the rights of the people. The guaranteed democratic system in which we live, that is the democratic system needs to be safeguarded from all external forces, The judiciary plays a predominant role in ensuring the unrestricted protection of the democratic system. This article provided the various aspects of why and how the judiciary had been important from the beginning of the Constitution. The purpose of the distinction into jurisdiction is analyzed in the article. The layout of jurisdiction made it effective for the administration of justice. The article seeks to clear the queries on the impact of the independence of the judiciary and the jurisdiction of the courts. The reason for the existence of independence of the judiciary and setting up of jurisdictions was found to decentralize the power and to foster a better justice delivery system, the common objective of both was to ensure the societal and the public welfare.

KEYWORDS

Independence, Judiciary, Courts, constitution, public and society.

INTRODUCTION

The judiciary is of utmost importance because it is the ultimate dispute-solving mechanism to ensure a society of peace and prosperity[1]. “The nation lives under the Constitution, but the Constitution is what the judges say Is,[2]” said Justice C.E. Hudges, K.S. Hedge remarked Judiciary has the “function as the balancing wheel[3]” of the Constitution. As quoted by the eminent people, the Judiciary plays a central role in the democratic system. The framers of the Indian Constitution were concerned regarding the judiciary’s independence and self-competence. The reason behind the stand was to guarantee the people a safe and secure environment where all their fundamental rights would be protected.

The priorities of the judiciary are to ensure liberty, equality, and justice in the land, which flows smoothly, to consider due to the independence of the judiciary. The Judiciary establishes the rule of law, and to stabilize it, it is a mandate that it should be independent and impartial.

 As Montesquieu remarked, the Doctrine of Separation of Powers[4] would be the central arch of a democratic system. The Doctrine of Separation of Powers stated that the organs of the government; the legislative, executive, and judiciary[5] should work within the limits conferred upon them and they should interfere within the boundaries of other organs. The objective of the doctrine is to avoid the concentration of power within the boundaries of a single establishment or an organ as this would pose a threat to a tyrannical society that is catastrophic. Further, the political liberty of the country can be safeguarded only when the Separation of Powers is properly implemented. The Non-interference is checked by the Judiciary, which is possible only if they are independent. But, as there have been many instances where the doctrine has been questioned and challenged, the establish an independency of the judiciary it is necessary that it should evolve along with the changing social, economic, and political situations pertinent in the country.

In India, the judiciary is generally categorized into the higher Judiciary and the lower judiciary[6]. The higher judiciary consists of the Supreme Court of India and the High Court of the respective states, while the lower judiciary consists of the courts that are subordinate to the High Courts in the respective states. They are entrusted with functions by the Constitution of India. The Higher judiciary is the imperative organ in a democratic government, and people have huge trust in the sanctity of the judiciary. They must promote constitutional governance to accord with the trust upon them. However, the jurisdiction of the courts to act upon is also provided provisionally by the Constitution of India.

Jurisdiction refers to the authority or power of a court or other legal entity to hear and decide a particular case or matter[7]. The jurisdiction entitled to the courts is of many types. The jurisdiction represents the competence of the courts of law to take up a matter under consideration and to deliver a valid judgment. If it has been without the jurisdiction, it would be declared void to be concerned as a decision. The need for divisions as to jurisdiction is to ensure the right functioning of the right courts within their scope. This would make the decisions viable and allow for a better justice administration.

OBJECTIVES

  1. To analyze why the Independence of the Judiciary in a democratic country like India is important.
  2. To understand and analyze the challenges directed towards the provisions in matters of the independence of the judiciary.
  3. To summarize the jurisdiction restricted to the Supreme Court of India and the High Courts of the respective states to extend its application.
  4. To study how the Independence of the Judiciary and the limited jurisdiction of the courts would enable the better administration of justice.

INDEPENDENCE OF JUDICIARY

The meaning of judiciary has not been defined in any place, leading to an imprecision in finding out the meaning of the term. Independence of the judiciary has been interpreted in two ways, one is by the concept of Separation of Powers, and the other is based on what and who constitutes the judiciary. One promotes that, the judiciary is for the institution to be independent, and the other as the Judiciary to be the people who constitute it to be independent[8]. The accountability of the judiciary travels parallel with the independence of the judiciary though it is a controversial concern.

Dr. B. R. Ambedkar provided that India should have a judiciary, that, “There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself.”

Separation of Powers has been considered an inviolable part of the “basic structure of the Constitution”[9].

CONSTITUIONAL PROVISIONS

The independence of the judiciary refers to the operation and function of the legal fraternity to make their own independent decisions without the restriction imposed upon them or forced upon them by any external forces. The Constitution has a written provision for the Independence of the judiciary. The provisions in the pretext of the independence of the judiciary go hand in hand with the determination of the jurisdiction and composition of the Courts in India.

  1. The Constitution in its Directive Principles of State Policy stated the states to have a separate judiciary which is distinct from its executive in public services of the state. It provided that judicial service should not be subject to executive control over it[10].
  2. The tenure of the judges appointed is secured and stable, a judge once appointed in the Supreme Court of India[11] has a stable tenure till his retirement (65 years) and for a High Court Judge[12] the age is fixed to be 62 years. They could not be removed from their position except for misbehavior or inability[13] to perform their functions. An order by a president with a two-thirds majority in both houses can remove a judge from his position. The only attempt made in this context has been unsuccessful[14].
  3. The eligibility of one to be a judge, and restrictions imposed upon them thereafter their tenure are explicitly provided in the constitution. There are provisions as to the salary, allowances, and privileges to be provided to the judges, which are only subjected to be changed upwards but never as to be downwards except in a financial emergency or crisis[15]. The expenses of the Supreme Court are charged upon the Consolidated Fund of India and that of the High Courts on the Consolidated Fund of the State[16].
  4. The parliament has been vested with the powers of increasing the authority of the courts and not decreasing, upholding the independence of the judiciary. The parliament can change the pecuniary limits, improve the appellant jurisdiction, and also vest the Supreme Court with additional powers to increase its efficiency[17].
  5. Both the Supreme Court[18] and the High Courts [19]are entitled to penalize the act of contempt of the respectively as according to the Constitution of India.
  6. The independence of the judiciary is upheld, the conduct or the behavior of the judges in the performance of his duties, can never be subjected to debate in the parliament or any of the state legislatures[20] unless there has been a petition presented by the President seeking for the removal of the judge.

The independence of the judiciary exists as a torch-bearer of the Rule of Law concept. The power vested such as the Judicial Review upholds and defends the rule of law. Judicial Review vests the authority of the judiciary to review the orders or any laws that have been made by the legislature and the executive. Though it has been viewed positively in matters of prevention of executive totalitarianism, it has also been seen as judicial authoritarianism and a hindrance to the democratic form of government.

CHALLENGES FACED BY THE NOTION OF THE INDEPENDENCE OF THE JUDICIARY

 The question in principle was how could the Judiciary be undoubtedly perfect to provide them with complete independence? This all started in 1973, where, after the retirement of the Chief Justice of India, the one to supersede must be the senior most judge, but there the fourth senior most judge was appointed and as a result, the three senior-most judges resigned their post.

 For the second time, the same followed where the second senior-most judge was appointed besides the senior-most judge. The scenario was that the ones who were not considered for the position delivered judgments that were inconsistent with the executive whereas the ones who were selected delivered them in favor of the executive[21]. This led to a widespread public debate, and soon the government changed where this issue was referred to the Law Commission of India, where the Law Commission explicitly provided that the appointment of judges should be mandatorily based on the seniority and this is followed this date.

CASE LAWS AND RELEVANT RULINGS

In the case of SP Gupta v. Union of India[22], famously known as the First Judges case, the Supreme Court held that in the matter of appointment of the judges amongst the opinion of three constitutional functionaries, one’s opinion can’t be considered prime. It further stated that the principle of the rule of law needs to be upheld, for which the judges should be self-competent, independent, and fearless.

In the case of Supreme Court Advocates-on-Record Association & Another v. Union of India[23], also known as the second judges’ case, the court held the powers of the judiciary can never be faulted and remains supreme, only when it is independent of other organs of the government. It stated that the Independence of the Judiciary is essential for the smooth functioning of a democratic system of government.

In Romila Thapar v. Union of India[24], known as the Bhima Koregaon case[25], the decision of the court was in favor of the Mumbai Police but one of the dissenting judges of the case himself stated that the arrests of the Human Rights activists had its base on political dissent.

In the case, Manohar Lal Sharma v. Narendra Damodardas Modi[26], which was based on the procurement of Rafale fighter jets, the litigants raised issues as to the existence of irregularities in the deal, but the court held that they had minimal discretion to Judicial Review on matters of the defense and turned down the corruption charges, he is closing down the case. It was seen to be controversial as it was reported by the government that there had been factual errors in the case.

There have been instances where retired judges have been posted into other positions and had political affiliations that were against the provision of the Constitution of India. For example, Justice Ranganath Mishra, after he resigned from the CJI post, was made the chairman of the National Human Rights Commission[27]. Justice M. Hidayatullah, a retired CJI, became the vice-president of India.

The judiciary is reportedly facing many challenges due to the post-retirement appointments of the judges, and also during the COVID-19 pandemic, in prioritization in the hearing of the cases, wherein the case of Anuradha Bhasin v. Union of India[28], regarding the shutdown of the internet in Jammu & Kashmir for more than 6 months, the court took an elongated period to hear on the matter.

JURISDICTION OF SUPREME COURT AND HIGH COURTS

The Indian administration system consists of the main organs of the Legislature, the Executive, and the Judiciary[29]. The Indian judicial system consists of a pyramidal structure. The judiciary comprises, in general of the Supreme courts at the top, the High Courts of the respective states at the middle, and all other respective courts at the bottom. The decisions of the Supreme are binding on all the courts of India.[30]

The Indian Supreme Court has been called “the most powerful court in the World” for its wide jurisdiction, its expansive understanding of its powers, and the billion-plus people under its authority[31]. The basic aim behind setting up these institutions is to regulate the law and order of the country. The Supreme Court is the apex court of the Judicial system of India with High courts at their respective state level to accompany the higher courts and the subordinate courts to uphold the flag of justice along with a progressive social change.

Jurisdiction refers to the authority or power of a court or other legal entity to hear and decide a particular case or matter[32]. The jurisdiction is of many types, including the geographical limit or the subject-matter-based jurisdiction.

TYPES OF JURISDICTIONS[33]

  1. The territorial jurisdiction refers to the geographical limit that is the area over which the courts can decide upon the cases. For example, the High courts can handle cases from the respective states[34].
  2. Pecuniary jurisdiction refers to the monetary limits on the courts, that the suit would be maintainable only when the value is within the limits.
  3. Subject matter jurisdiction is the power vested with the courts to decide upon the matters pertinent to the subject. For example, family courts, civil courts, labor courts, consumer redressal tribunals, etc.,
  4. Original jurisdiction refers to the cases, where the cases can be directed and heard before the court directly without any appeal from the lower courts that is at the first instance hearing of the cases.
  5. Exclusive jurisdiction provides the jurisdiction over cases that are exclusively referred to it. For example, the Motor Vehicles Tribunal has the exclusive jurisdiction to hear motor vehicle cases.
  6. Appellate jurisdiction is the authority vested with to hear the cases that are on appeal from the lower courts.
  7. Advisory jurisdiction is where the president is entitled to seek advisory opinions.
  8. Constitutional jurisdiction is the power vested to interpret and apply the provisions of the Constitution.
  9. Writ jurisdiction is the power to issue writs, such as Habeas Corpus, Mandamus, Certiorari, Prohibition, and quo warranto.

JURISDICTIONS OF THE SUPREME COURT

The Constitution[35] provides the authority for the establishment of the Supreme Court. The Supreme Court is the apex court of the democratic India. The judiciary is provided with independence and the Supreme Court exists as an autonomous body. Every procedure for the structurization of the courts is decided by the forums.

The case of the NJAC v. Collegium, where the NJAC provided an amendment to allow the executive to be opinionated in the appointment of the judges was declared unconstitutional by the Supreme as it was seen as arbitrary[36].

The documents accepted before the Supreme Court are of higher evidentiary value. They have ensured the independence of their functions, all of which are explicitly or impliedly provided by the Constitution of India[37].

The Supreme Court is the apex court of the largest democracy in India. The jurisdiction of the Supreme Court is directed by the Constitution of India. The basic classifications of the jurisdiction are the original, appellate, and advisory jurisdiction.

  1. The Supreme Court of India has territorial jurisdiction over the entire territory of India.
  2. Original Jurisdiction[38]: The court has the exclusive power and authority to handle cases that involve the government of India and any state, or between two or more states, when the dispute is with regards to the question of law or fact, but for the existence of the legal right.
  3. Writ Jurisdiction[39]: Under the authority of the constitution, the Supreme Court is empowered to issue orders or writs such as Habeas Corpus, Mandamus, Certiorari, Prohibition, and quo warranto for the protection and enforcement of fundamental rights.
  4. Appellate jurisdiction[40]: The Supreme Court could review the judgments or orders provided by the high courts in both civil and criminal cases. For a civil case to stand before the court, it either needs to be of general importance, or the judgment of the High Court shall explicitly provide for the question to be answered by the Supreme Court. Persons who are dissatisfied with the judgment of the lower court can seek review by the Supreme Court for a better interpretation of the law.
  5. Extraordinary Jurisdiction[41]: The supreme courts have a wide jurisdiction over the courts and tribunals in India to grant special leave to appeal on matters such as the orders, judgments, sentences, etc., passed by the lower courts and other tribunals within the territory of India.
  6. Advisory jurisdiction[42]: The court poses the advisory jurisdiction for the matters that can be referred by them to the President of India which are of public importance. In the same way, the President can ask the Supreme Court to direct opinions in matters of public importance or questions under the advisory jurisdiction.
  7. Public Interest Litigation and Legal Aid[43]: The Supreme Court allows for not only the parties affected but also those people with public interest and public sprint to move writ petitions before the court of law. In instances, the Supreme Court has treated telegrams, letters, and news reports as writ petitions. Legal Aid refers to the financial support provided to people who are categorized to be low-income people based on their annual income. Also, the middle-incomed society can claim Legal Aid from the Supreme Court Legal Aid Committee.

The Supreme Court is also vested with the powers of transferring any case from one High Court to another, or from a subordinate court to the High Court. It could withdraw cases before the High Courts if the same matter of law is being proceeded in both the High Court and the Supreme Court[44].

JURISDICTIONS OF THE HIGH COURT

High Courts are the supreme legal administrative body of the respective states. There exists a total of 25 High Courts within the territory of India[45]. These are the intermediary courts between the Supreme Court of India and the subordinate lower courts. A single High Court can serve as the common court between two or more states[46].

The powers of the High courts are such that the evidentiary value of the records accepted by the courts, control over the subordinate courts, and the protector of the constitution as was the Supreme Court of India. The jurisdiction of the High Corts is similar to that of the Supreme Courts but is restricted in cases in accord with the territory of the dispute. The jurisdiction defined is such that,

  1. The High Court has its territorial jurisdiction over the geographical area of the state and the respective union territories under the power and authority of the respective courts of the states.
  2. As that of the Supreme Court, they are entitled to entertain the cases of original jurisdiction[47], where the dispute arises between the state and the individuals, or between the state governments. The cases can be civil, criminal, or the election jurisdiction[48].
  3. The High Courts are also empowered to issue orders or writs[49] such as Habeas Corpus, Mandamus, Certiorari, Prohibition, and quo warranto for the protection and enforcement of fundamental rights within the territorial jurisdiction of the High Courts.
  4. They exercise the power to handle the appeal from the case decided by the subordinate lower courts within the territorial jurisdiction of the High Courts.
  5. The High Courts are also entitled to enforce the appeal[50] of the decisions made by the tribunals situated within the jurisdiction of the court.
  6. The High Courts can call for the return of accounts of the subordinate courts and provide the rules and regulations on how these courts should function, and also mention the manner for the maintenance of the accounts[51].

The advocate general has the power as that of advisory jurisdiction, to provide advice or opinions to the state government on legal matters, and can take part in the proceedings of the state legislature. He is entitled to the right to speak but not the right to vote. He is qualified as be appointed to be the judge of the High Court[52].

CASE LAWS AND RELEVANT RULINGS

In the case of Re: Keshav Singh[53], the state legislative assembly ordered the detention of judges, the president sought the advisory jurisdiction of the Supreme Court and it held an extensive opinion but also provided that the opinion was not binding on the President but had judicial importance.

In M. Ismail Faruqui v. Union of India[54], the court held that they could refuse to provide an advisory opinion if the reasons were not appropriate.

In Union of India v. Sandur Manganese & Iron Ores Ltd.,[55] The Supreme Court held that review could only be made towards any mistake in the pronounced judgment but not in an alternative view over the judgment.

SUGGESTIONS AND CONCLUSION

The independence of the judiciary is a constitutional mandate, and it is necessary for the suppression of the arbitrariness of the other organs of the government.

  1. No organ is completely perfect, as is the judiciary, thus they need to be entitled to independence, but they should be subjected to severe consequences for the non-regulation or violation of the authority provided to them.
  2. The working of the judiciary should focus on public acceptance as they are accountable to the public. Therefore, both the Judicial Independence and the Judicial Accountability should co-exist.
  3. The public should be included in the appointment of the judges at any stage by the collegium.
  4. The pendency of the cases can be resolved only by the creation of more courts and the respective judges for the courts as the population ratio as to the judges or that of the courts is barely sufficient.
  5. Post-retirement jobs are unconstitutional, but the judges are appointed into jobs in many cases. This should be highly regulated, as regulating this would increase the focus of the judges and would increase the reality of the courts by the public.

Despite the advantages and disadvantages stuck together with the Independence of the Judiciary, it is this feature that makes it regulate the largest democracy without any concentration of power in the same place. The distinction into the jurisdiction of the courts also serves the main aim of separation of work, which would make it effective and reliable.

REFERENCES

  1. M.P. Singh, Securing the Independence of The Judiciary- The Indian Experience, 10, IND. INT’L & COMP. L. REV, 245 (2000).
  2. Brij Mohan Dutta, Independence of Judiciary & Judicial Accountability, Present Scenario in India and Way Forward, 4, INT’L. J. LEG. DEV, 82, (2018).
  3. Kriti, Independence of the Judiciary, J. Contemp. Issues law, 2, (2016).
  4. George Gadbois, Supreme Court Decision making, 10 BANARAS LAW J. 1 (1974).
  5. Ishan Arun Mudbidri and Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, (Feb. 7, 2024, 06:47 P.M.)https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/.
  6. Tamma Kusumanjali, Jurisdiction of Supreme Court and High Court, Legal Vidhiya (Aug. 2, 2023), JURISDICTION OF SUPREME COURT AND HIGH COURT – Legal Vidhiya
  7. Amit Kumar Das, 10 Types or Kinds of Jurisdiction of Indian Courts, Writing law, (Feb. 6, 9:10 P.M.), 10 Types or Kinds of Jurisdiction of Indian Courts (writinglaw.com).
  8. Jurisdiction of Supreme Court, SUPREME COURT OF INDIA, https://main.sci.gov.in/jurisdiction (last visited on Feb 7, 2024).
  9. Priyamvada Singh,  Anatomy of the judiciary: The Supreme Court and the High Court, (Feb. 5, 2024) Anatomy of the judiciary: the Supreme Court and the High Courts (ipleaders.in)
  10. Indian Kanoon, https://indiankanoon.org/doc/126750916/ (last visited Feb. 10, 2024).
  11. SCC Online, https://www.scconline.com/blog/post/2023/07/18/the-supreme-court-of-india-and-its-diverse-jurisdictions/ (last visited Feb. 10, 2024).

[1] M.P. Singh, SECURING THE INDEPENDENCE OF THE JUDICIARY- THE INDIAN EXPERIENCE, 10, IND. INT’L & COMP. L. REV, 245 (2000).

[2] Brij Mohan Dutta, INDEPENDENCE OF JUDICIARY & JUDICIAL ACCOUNTABILITY, PRESENT SCENARIO IN INDIA AND WAY FORWARD, 4, INT’L. J. LEG. DEV, 82, (2018).

[3] Id.

[4] Ishan Arun Mudbidri and Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, (Feb. 7, 2024, 06:47 P.M.) https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/.

[5] Id.

[6] Id.

[7] Tamma Kusumanjali, Jurisdiction of Supreme Court and High Court, Legal Vidhiya (Aug. 2, 2023), JURISDICTION OF SUPREME COURT AND HIGH COURT – Legal Vidhiya

[8] Kriti, Independence of the Judiciary, J. Contemp. Issues law, 2, (2016).

[9] Keshavananda Bharati v. State of Karnataka AIR 1973 SC 1461.

[10] INDIA CONSTI. Art. 50.

[11] INDIA CONSTI. Art. 124, cl.2.

[12] INDIA CONSTI. Art. 217, cl.1.

[13] INDIA CONSTI. Art. 124, cl.4.

[14] M.P. Singh, SECURING THE INDEPENDENCE OF THE JUDICIARY- THE INDIAN EXPERIENCE, 10, IND. INT’L & COMP. L. REV, 245 (2000).

[15] INDIA CONSTI. Art. 125.

[16] INDIA CONSTI. Art. 125, cl.2.

[17] Ishan Arun Mudbidri and Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, (Feb. 7, 2024, 06:47 P.M.) https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/.

[18] INDIA CONSTI. Art. 129.

[19] INDIA CONSTI. Art. 215.

[20] INDIA CONSTI. Art. 121.

[21] M.P. Singh, SECURING THE INDEPENDENCE OF THE JUDICIARY- THE INDIAN EXPERIENCE, 10, IND. INT’L & COMP. L. REV, 245 (2000).

[22] AIR 1982 SCC 149.

[23] AIR 1993 (4) SCC 441.

[24] AIR 2018 SC 244.

[25] Ishan Arun Mudbidri and Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, (Feb. 7, 2024, 06:47 P.M.) https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/.

[26] AIR 2019 SC 1802.

[27] Id.

[28] AIR 2020 SC 1308.

[29] Id. at 24.

[30] INDIA CONSTI. Art. 141.

[31] George Gadbois, Supreme Court Decision making, 10 BANARAS LAW J. 1 (1974).

[32] Id. at 7.

[33] Id at 7.

[34]Amit Kumar Das, 10 Types or Kinds of Jurisdiction of Indian Courts, Writing law, (Feb. 6, 9:10 P.M.), 10 Types or Kinds of Jurisdiction of Indian Courts (writinglaw.com).

[35] INDIA CONSTI, Art.124.

[36] Id. at 4.

[37] Jurisdiction of Supreme Court, SUPREME COURT OF INDIA, https://main.sci.gov.in/jurisdiction (last visited on Feb 7, 2024).

[38] INDIA CONSTI, Art.131.

[39] INDIA CONSTI, Art.32.

[40] INDIA CONSTI, Art.132.

[41] INDIA CONSTI, Art.136.

[42] INDIA CONSTI, Art.143.

[43] Id. at 35.

[44] INDIA CONSTI, Art.139A.

[45] Id. at 35.

[46] INDIA CONSTI, Art. 231.

[47] INDIA CONSTI, Art. 225.

[48]  Priyamvada Singh,  Anatomy of the judiciary: The Supreme Court and the High Court, (Feb. 5, 2024) Anatomy of the judiciary: the Supreme Court and the High Courts (ipleaders.in)

[49] INDIA CONSTI, Art. 226.

[50] INDIA CONSTI, Art.132.

[51] Id. at 35.

[52] Id. at 35.

[53] AIR 1965 SC 745.

[54] AIR 1995 SC 605.

[55] AIR 2013 SCW 2905.

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