Family Court Judges Not Eligible for High Court Elevation: Supreme Court Refuses to Revisit Precedent
“A judge may spend years delivering justice, but constitutional recognition depends not only on the work one performs—it also depends on the legal structure of the office one holds. The real question now is whether specialisation in family courts must require institutional separation from the mainstream judicial service.”
— Adv. Tarun Choudhury, Supreme Court Advocate
Introduction
The Supreme Court has once again drawn a clear constitutional distinction between a person performing judicial functions and a person holding a “judicial office” for the specific purpose of Article 217 of the Constitution.
In a significant order delivered on 31 August 2026, a three-judge bench of the Supreme Court refused to entertain a plea filed by seven Family Court Judges from Maharashtra who sought recognition of their posts as “judicial offices” so that they could become eligible for consideration for appointment as High Court Judges.
The petitioners sought reconsideration of the Supreme Court’s earlier decision in S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252, in which the Court had held that Family Court Judges belonging to a separate cadre in Maharashtra could not be treated as holding a “judicial office” within the meaning of Article 217(2)(a) of the Constitution.
The latest decision is important not merely because of the immediate question of High Court elevation of Family Court judges, but because it raises a larger constitutional question:
When does the exercise of judicial power amount to holding a “judicial office” for the purposes of constitutional appointment to the High Court?
The Supreme Court has answered that question, for the present, by standing by its earlier precedent.
Case Details
| Particular | Details |
|---|---|
| Case | Indrakala Joginder Nanda & Ors. v. High Court of Judicature at Bombay & Anr. |
| D. No. | 38854/2026 |
| Decision Date | 31 August 2026 |
| Bench | Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana |
| Relevant Constitutional Provisions | Articles 217, 233 and 236 of the Constitution of India |
| Earlier Precedent | S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252 |
Important: The Supreme Court’s latest order does not create a new constitutional rule from scratch. Rather, it declines to reopen the legal position laid down in S.D. Joshi while suggesting that the structural issue of a separate Family Court cadre may be addressed administratively by the High Court and State Government.
What Did the Supreme Court Decide?
The Supreme Court declined to entertain the petition and held, in substance, that the issue had already been decided by the Court in S.D. Joshi.
The bench comprising CJI Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana observed that the petition essentially sought to review or recall an earlier judgement of the Supreme Court through a writ petition under Article 32.
The Court held that:
- The question regarding the status of Family Court Judges under Article 217 had already been considered;
- S.D. Joshi continued to govern the issue;
- no sufficient change in law or facts had been demonstrated to justify reopening that precedent;
- The later decision relied upon by the petitioners, particularly Rajnish v. Deepa, did not deal with the interpretation of Article 217;
- the underlying issue concerning a separate Family Court cadre was substantially a matter of service policy and administrative restructuring; and
- The concerned High Court and State Government could consider reformulating the rules governing Family Court appointments.
This is therefore not simply a dismissal on a technical ground. The order reinforces the distinction drawn by the Supreme Court between judicial work and constitutional judicial office.
The Petitioners’ Case Before the Supreme Court
The seven petitioners were family court judges in Maharashtra.
Their argument was straightforward but constitutionally significant.
They contended that they:
- had been appointed under the applicable Family Courts recruitment framework;
- had undergone judicial selection;
- had considerable experience in judicial service;
- were discharging judicial functions;
- were presiding over statutory courts;
- exercised powers substantially judicial in nature; and
- Therefore ought to be regarded as holding a “judicial office” for the purposes of Article 217.
According to the submissions reported during the hearing, some of the petitioners had served for considerably more than seven years, with some having spent many years in judicial service. The petitioners therefore argued that the constitutional requirement should not operate to exclude them merely because Maharashtra had maintained a separate cadre for family courts.
Their argument was strengthened by an important factual assertion.
It was submitted that for approximately 36 years Maharashtra had not recruited outsiders into the Family Court cadre in the manner contemplated under the statutory framework. Instead, persons appointed to those positions had been judicial officers or advocates satisfying the relevant qualifications.
Senior Advocate R. Basant therefore argued that the factual foundation on which S.D. Joshi had proceeded had materially changed.
In essence, the argument was:
If family court judges in practice have become judicial officers selected through a judicial process and performing judicial functions, why should they continue to be constitutionally excluded from consideration for elevation to the High Court?
That was the central issue placed before the Bench.
Article 217 and the Importance of “Judicial Office”
To understand the judgement properly, one must first understand Article 217 of the Constitution.
Article 217 deals with the appointment and conditions of office of a judge of a high court.
One of the constitutional routes to eligibility involves the requirement of having held a judicial office for not less than ten years in the territory of India, subject to the constitutional requirements.
The expression “judicial office” is therefore not a casual expression.
It has constitutional significance.
The Supreme Court has historically interpreted constitutional expressions concerning judicial office, judicial service and appointment to superior courts in a structured manner.
Judicial Functions Versus Judicial Office
The important point is this:
Merely performing judicial functions is not necessarily sufficient.
A person may preside over an adjudicatory body and decide disputes, but that does not automatically mean that the person occupies a “judicial office” within the constitutional scheme governing appointment to the High Court.
That distinction was central to S.D. Joshi and remains central after the latest order.
What Did the Supreme Court Hold in S.D. Joshi?
The earlier decision of S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252 is the foundation of the present controversy.
In that case, Family Court Judges in Maharashtra had similarly claimed that they should be considered for elevation to the High Court.
The Supreme Court examined the constitutional scheme contained in Articles 217, 233 and 236, along with the Family Courts Act.
The Court recognised that Family Court judges are unquestionably judges in the ordinary or generic sense.
But the Court drew a constitutional distinction.
It held that the judges of family courts in the separate Maharashtra cadre were not members of the state’s judicial service as contemplated by Article 236(b), nor did they hold a “judicial office” within the meaning of Article 217 for the purpose of eligibility for High Court elevation.
The Court also examined the nature and scope of family courts.
Family courts are specialised courts created by statute and exercise jurisdiction over specified family-related disputes. Their jurisdiction, therefore, is specialised and limited by the statutory framework.
The Supreme Court found a distinction between this specialised cadre and the mainstream Higher Judicial Service.
The earlier judgement consequently denied the claim of parity for High Court elevation.
Why Did the Petitioners Want S.D. Joshi Reconsidered?
The petitioners did not simply ignore the earlier judgement.
They openly accepted that S.D. Joshi stood in their way.
Their argument was that circumstances had changed sufficiently to justify reconsideration.
This is an important distinction.
They contended that the practical operation of the Maharashtra Family Court system had evolved over several decades.
According to their submissions:
- Family Court judges were being selected through a judicial process;
- The persons appointed were substantially from the judicial service or qualified members of the Bar;
- There had been no significant appointment from the alternative sources contemplated by the statutory framework for decades;
- Family Court judges had extensive judicial experience; and
- The functional reality of the post had therefore changed.
The petitioners argued that the factual assumptions underlying S.D. Joshi could no longer be applied mechanically.
This was a serious constitutional argument.
However, the Supreme Court was not persuaded that the changes relied upon were sufficient to justify reopening the earlier constitutional interpretation.
Supreme Court: Where Is the Change in Law?
The Bench repeatedly focused on one fundamental question:
What has changed legally or factually that would justify revisiting the earlier judgement?
The Court noted that the petitioners had not produced a subsequent judgement providing a contrary interpretation of Article 217.
Justice Joymalya Bagchi reportedly pointed out that if the petitioners wanted the Court to doubt the ratio of S.D. Joshi and effectively overrule it, they would need to demonstrate a contrary legal position or an interpretation of Article 217 that had not previously been considered.
This reflects an important principle of constitutional adjudication.
A precedent of the Supreme Court cannot ordinarily be reopened merely because another litigant believes that the earlier interpretation should have been different.
There must be a legally sustainable reason for reconsideration.
What About the Rajnish Judgement?
One of the arguments advanced before the Bench relied upon the Supreme Court’s decision in Rajnish v. Deepa.
The petitioners attempted to rely upon that decision to demonstrate that Family Court judges should not be treated as occupying a legally inferior position for judicial-service purposes.
However, the Bench made an important distinction.
The CJI observed that Rajnish did not decide the interpretation of Article 217.
That distinction is crucial.
A judgement may alter the legal position concerning one aspect of service, recruitment, jurisdiction or eligibility without necessarily changing the constitutional meaning of “judicial office” under Article 217.
Therefore, the Court refused to treat Rajnish as a basis for reopening S.D. Joshi.
The Most Significant Observation: The Problem May Lie in the Separate Cadre
In my view, one of the most important aspects of the latest proceedings is not the refusal to revisit S.D. Joshi.
It is the Supreme Court’s observation concerning the separate Family Court cadre.
The Chief Justice questioned why Maharashtra maintains a separate cadre for Family Court Judges when, in many other states, Family Court Judges are drawn from the regular judicial service and posted to Family Courts.
That model is structurally different.
A district judge or another judicial officer may be posted to a family court while continuing to remain part of the mainstream judicial hierarchy.
After serving in the Family Court, the officer can return to the regular judicial stream.
The position is therefore different from a person belonging permanently to a separate statutory cadre.
The CJI observed, in substance, that “the problem lies in the creation of a separate cadre for Family Courts.”
This observation could ultimately prove more consequential than the immediate dismissal of the petition.
Family Court Judges and District Judges: Why the Distinction Matters
The Supreme Court’s approach can be understood through the constitutional structure of the subordinate judiciary.
The Constitution does not treat every adjudicatory office as identical.
There is a structured judicial hierarchy.
The District Judiciary occupies a constitutionally recognised position under Articles 233 to 236.
- Article 233 deals with the appointment of district judges.
- Article 236 defines expressions including “district judge” and “judicial service”.
- Article 217 governs eligibility for appointment as a High Court Judge.
Therefore, the question is not merely:
“Does this person decide cases?”
The deeper constitutional question is:
“Does this office form part of the judicial structure recognised by the Constitution for the purpose of eligibility under Article 217?”
That is why the nature of the appointment, cadre, conditions of service, transferability, statutory framework and relationship with the regular judicial service become relevant.
A Family Court Is Certainly a Court — But That Is Not the End of the Constitutional Question
This distinction deserves particular emphasis.
It would be incorrect to read the judgement as suggesting that family courts are not courts.
They undoubtedly are statutory courts and exercise judicial powers.
Family Court judges adjudicate serious disputes involving:
- matrimonial relationships;
- divorce;
- maintenance;
- custody;
- guardianship;
- legitimacy;
- matrimonial property and related issues; and
- other matters falling within the jurisdiction prescribed by law.
Their decisions have serious consequences for families and individuals.
The Supreme Court’s reasoning, however, concerns the constitutional character of the office for the specific purpose of Article 217.
Therefore:
“Judge of a Family Court” ≠automatically “judicial office under Article 217″.
That is the constitutional distinction which continues to operate after the latest order.
The Article 32 Problem
Another important aspect of the Supreme Court’s latest decision concerns the use of Article 32.
The petitioners approached the Supreme Court directly.
However, the Bench observed that the writ petition essentially sought a review or recall of an earlier Supreme Court judgement.
The Court stated that an Article 32 writ petition is not an appropriate route for seeking review of a judgement of the Supreme Court.
This is significant from the standpoint of constitutional procedure.
Article 32 is a powerful constitutional remedy for enforcement of fundamental rights.
But it cannot ordinarily be converted into an indirect mechanism for reopening a binding Supreme Court precedent merely by recasting the dispute as a fresh constitutional petition.
The latest order therefore reinforces both substantive precedent and procedural discipline.
Does the Judgement Mean Family Court Judges Can Never Become High Court Judges?
This requires careful qualification.
The headline “Family Court Judges Not Eligible for High Court Elevation” is accurate in the context of the separate Family Court cadre considered by the Court under the existing legal framework.
But it should not be misunderstood as saying that a judicial officer can never serve in a family court and subsequently become eligible for elevation.
The Supreme Court itself highlighted the difference between:
| Model | Description |
|---|---|
| Model 1: Separate Family Court Cadre | A person is appointed into a distinct Family Court cadre and remains outside the mainstream judicial service structure. |
| Model 2: Regular Judicial Service + Family Court Posting | A judicial officer belonging to the regular judicial service is posted to a family court. |
In the second model, the officer does not necessarily lose his or her status as a member of the judicial service merely because the officer is temporarily posted to a Family Court.
The distinction between these two models is therefore critical.
The Supreme Court Opens the Door to Administrative Reform
Interestingly, although the Supreme Court refused to revisit S.D. Joshi, it did not leave the petitioners entirely without a possible institutional solution.
The Bench suggested that the petitioners could approach the concerned High Court and State Government for reconsideration of the rules governing the appointment and cadre structure of Family Court Judges.
The Court indicated that the issue could be addressed as a matter of policy and administrative restructuring.
The Court also referred to the different arrangements prevailing in other states.
This is perhaps the most constructive aspect of the order.
Instead of judicially rewriting the constitutional interpretation in S.D. Joshi, the Supreme Court has effectively indicated that the State and High Court may consider changing the institutional structure itself.
What Could Maharashtra Consider?
Without prejudging the policy decision, the judgement provides an opportunity to consider whether the separate cadre model remains desirable.
Possible reforms could include:
- Integrating Family Court Judges into the regular judicial service Family courts could be treated as specialised postings within the existing judicial hierarchy.
- Deputation from the Higher Judicial Service: Regular judicial officers could be posted to Family Courts for specified periods.
- Maintaining specialisation without creating permanent segregation Family Court work requires specialised knowledge of matrimonial and family law. Specialisation can therefore be retained without necessarily creating a completely separate judicial cadre.
- Clear career progression Judicial officers serving in family courts should have transparent rules concerning promotion, transfer and career progression.
- Uniformity across States The Supreme Court’s observations may encourage states to examine whether substantially different cadre structures for family courts are constitutionally and administratively desirable.
Why This Judgement Matters for Judicial Appointments
The case has implications beyond family courts.
It reinforces a broader constitutional proposition:
The constitutional eligibility for elevation to a High Court cannot be determined merely by the label “Judge” or by the fact that an officer performs adjudicatory functions.
The constitutional structure governing judicial appointments requires a closer examination of the nature of the office.
This principle may become relevant whenever questions arise concerning:
- specialised courts;
- tribunals;
- statutory adjudicatory authorities;
- specialised judicial cadres;
- service tribunals;
- labour adjudicatory bodies; and
- other institutions exercising judicial or quasi-judicial functions.
The Supreme Court has repeatedly cautioned against treating every institution exercising adjudicatory power as constitutionally identical to the regular judiciary.
Does This Create an Unfair Disadvantage for Family Court Judges?
From the perspective of a practising lawyer, this is where the debate becomes more complicated.
There is a legitimate argument that substance should matter more than nomenclature.
Suppose two judicial officers:
- are appointed through judicial selection;
- possess comparable legal qualifications;
- have substantial judicial experience;
- hear evidence;
- decide contested cases;
- write reasoned judgements;
- exercise judicial discretion; and
- are subject to appellate scrutiny by the High Court.
If one officer belongs to the regular judicial cadre while the other belongs to a separate Family Court cadre, should the latter’s years of judicial experience be completely disregarded for constitutional elevation?
That is a question which deserves serious institutional consideration.
On the other hand, constitutional appointment provisions cannot be rewritten simply on the basis of functional similarity.
That is precisely why the Supreme Court has maintained the distinction.
The Larger Constitutional Lesson
There is a deeper constitutional lesson here.
Judicial power, judicial office and judicial service are related concepts—but they are not interchangeable concepts.
The Constitution deliberately establishes different categories.
| Constitutional Provision | Subject |
|---|---|
| Article 217 | High Court appointments |
| Articles 233 to 236 | Subordinate judiciary and judicial service |
The Supreme Court’s latest order demonstrates that these provisions must be read together rather than in isolation.
Therefore, a person cannot establish eligibility under Article 217 simply by demonstrating:
“I decide cases; therefore, I hold judicial office.”
The constitutional inquiry is more structured.
My Legal Analysis
Having practised before the Supreme Court for many years, I would regard the latest decision as a precedent-preserving judgement rather than a judgement closing the door to reform.
The Supreme Court was confronted with two competing considerations.
On one side was the argument of the petitioners:
The factual reality has changed.
On the other was the institutional principle:
A binding Supreme Court constitutional precedent cannot be reopened without a compelling legal or factual basis.
The Bench chose judicial continuity.
In my view, that approach is understandable.
If every subsequent factual variation were sufficient to reopen a constitutional precedent, the certainty and stability of constitutional law would be seriously compromised.
At the same time, the Court’s comments regarding the separate Family Court cadre are important.
If the State’s institutional structure has genuinely created an anomalous situation, the solution may lie in correcting the structure rather than asking the Court to repeatedly reinterpret Article 217.
That is a much cleaner constitutional route.
What Should Happen Next?
The real question now shifts from the Supreme Court to the Maharashtra Government and the Bombay High Court.
They may examine whether the existing Family Court cadre should continue in its present form.
The options could include:
- retaining the existing structure;
- modifying recruitment rules;
- integrating the cadre with the regular judicial service;
- adopting a deputation model;
- creating clearer promotional avenues; or
- restructuring the system in accordance with models followed in other states.
The Supreme Court has effectively indicated that such questions fall within the domain of institutional policy, subject of course to constitutional and statutory limitations.
Key Takeaways
- Family Court judges in a separate cadre remain ineligible for High Court elevation under the existing S.D. Joshi precedent.
- The Supreme Court has refused to revisit S.D. Joshi in the latest proceedings.
- Article 217’s expression “judicial office” has a specific constitutional meaning.
- Performing judicial functions alone does not automatically establish eligibility under Article 217.
- The Supreme Court distinguished Rajnish v. Deepa, observing that it did not decide the Article 217 issue.
- The Court identified the separate Family Court cadre as the larger structural issue.
- The High Court and State Government may consider reformulating the Family Court appointment and service structure.
- An Article 32 petition cannot ordinarily be used as an indirect route to review or recall a Supreme Court judgement.
- The decision preserves the binding force of S.D. Joshi.
- The judgement leaves open the possibility of administrative and legislative reform of the Family Court cadre.
Conclusion
The Supreme Court’s latest ruling on Family Court Judges Not Eligible for High Court Elevation is significant because it brings the constitutional debate back to first principles.
A person may be a judge in the ordinary sense, may exercise judicial powers, may write judgements and may spend decades adjudicating disputes. Yet constitutional eligibility for appointment to a High Court depends upon whether the person satisfies the specific requirements of Article 217, as interpreted within the constitutional scheme governing judicial service.
For the present, the Supreme Court has made its position clear:
- The law declared in S.D. Joshi continues to hold the field.
- The Court sees no sufficient basis to reopen it through the present Article 32 petition.
But the judgement does not necessarily end the larger debate.
Indeed, the Court’s observations suggest that the more appropriate question may now be:
Should Family Court Judges Continue to Remain Part of a Separate Cadre?
If Maharashtra and other states reconsider their institutional model and bring Family Court postings within the mainstream judicial service, the constitutional difficulty identified in S.D. Joshi could potentially be addressed through structural reform rather than repeated litigation.
In my considered view, specialisation in family justice is necessary; institutional segregation of judicial officers is a separate question. The two should not automatically be treated as synonymous.
The latest judgement therefore deserves to be read not merely as a decision denying a particular class of judges’ eligibility for High Court elevation, but as an invitation to policymakers and the judiciary to examine whether the existing Family Court cadre structure remains consistent with the evolving needs of India’s judicial system.
Case Citation
| Particular | Details |
|---|---|
| Case | Indrakala Joginder Nanda & Ors. v. High Court of Judicature at Bombay & Anr. |
| Diary Number | D. No. 38854/2026 |
| Court | Supreme Court of India |
| Order Date | 31 August 2026 |
| Earlier Governing Precedent | S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252; 2010 INSC 769 |
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Frequently Asked Questions (FAQs)
1. Are Family Court Judges Eligible for Elevation to the High Court?
Under the existing Supreme Court precedent in S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252, family court judges belonging to a separate cadre are not considered to hold “judicial office” for the purpose of eligibility under Article 217 of the Constitution. The Supreme Court has now refused to revisit that precedent.
2. Why Are Family Court Judges Not Eligible for High Court Elevation Under Article 217?
The Supreme Court has distinguished between performing judicial functions and holding a judicial office recognised for the purposes of Article 217. The Court held that membership of a separate Family Court cadre does not, by itself, satisfy the constitutional requirement of holding a judicial office for High Court appointment.
3. What Did the Supreme Court Decide in the Latest Family Court Judges High Court Elevation Case?
In Indrakala Joginder Nanda & Ors. v. High Court of Judicature at Bombay & Anr., D. No. 38854/2026, decided on 31 August 2026, the Supreme Court declined to reconsider S.D. Joshi. The Court also indicated that the issue of maintaining a separate Family Court cadre could potentially be addressed through administrative or service-rule reforms by the concerned High Court and State Government.
4. Can a Family Court Judge Become Eligible for High Court Elevation if the Family Court Cadre Is Integrated With the Regular Judicial Service?
Potentially, the position could be different if Family Court judges are made part of the regular judicial service rather than a separate cadre. The Supreme Court specifically highlighted the structural distinction between a separate Family Court cadre and regular judicial officers who are posted to Family Courts.
Any such change, however, would depend upon the applicable constitutional provisions, legislation and service rules.
5. What Is the Significance of the Supreme Court Refusing to Revisit S.D. Joshi?
The decision confirms that S.D. Joshi remains the governing precedent on the eligibility of Family Court Judges from a separate cadre for High Court elevation under Article 217.
It also highlights a broader constitutional principle: judicial functions, judicial office and judicial service are related but legally distinct concepts.
The judgement may therefore encourage Maharashtra and other states to reconsider the structure and recruitment rules governing family court judges.
Key Takeaways: Family Court Judges Not Eligible for High Court Elevation
- Family Court Judges Not Eligible for HC Elevation: The Supreme Court has refused to reconsider the existing legal position that Family Court Judges belonging to a separate cadre are not eligible for elevation to the High Court under Article 217.
- S.D. Joshi Remains the Governing Precedent: The Supreme Court reaffirmed the relevance of S.D. Joshi & Ors. v. High Court of Judicature at Bombay & Ors., (2011) 1 SCC 252, which held that Family Court Judges in the separate Maharashtra cadre do not hold “judicial office” for Article 217 purposes.
- Latest Supreme Court Order: In Indrakala Joginder Nanda & Ors. v. High Court of Judicature at Bombay & Anr., D. No. 38854/2026, decided on 31 August 2026, the Court declined to reopen the issue through an Article 32 petition.
- Judicial Functions Are Not Enough: The Supreme Court’s reasoning highlights that performing judicial functions does not automatically mean that an officer holds “judicial office” within the constitutional meaning of Article 217.
- Separate Family Court Cadre Is Crucial: The Court drew attention to the fact that Maharashtra maintains a separate Family Court cadre, unlike models where regular judicial officers are posted to Family Courts.
- Article 217 Is Central: Eligibility for appointment as a High Court Judge must satisfy the constitutional requirements of Article 217, including the requirement concerning the holding of judicial office for the prescribed period.
- Rajnish v. Deepa Does Not Alter the Position: The Court noted that the decision in Rajnish v. Deepa did not determine the interpretation of Article 217 and therefore did not provide a basis for overruling S.D. Joshi.
- Article 32 Cannot Be Used to Bypass Supreme Court Precedent: The latest proceedings also reinforce the principle that a writ petition under Article 32 cannot ordinarily be used as an indirect mechanism to review or recall an earlier Supreme Court judgement.
- Scope for Administrative Reform: The Supreme Court indicated that the High Court and Maharashtra Government may consider restructuring the Family Court cadre and appointment rules, potentially addressing the underlying issue without reopening the constitutional precedent.
- Broader Constitutional Significance: The judgement demonstrates that judicial office, judicial service and judicial functions are not legally interchangeable concepts when determining eligibility for High Court elevation.
Summary
The Supreme Court has refused to revisit its 2011 precedent in S.D. Joshi, holding that Family Court judges belonging to a separate cadre are not eligible for High Court elevation under Article 217 merely because they perform judicial functions.
The Court has, however, highlighted the separate Family Court cadre as a potential area for administrative and service-rule reform.
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