Reflections of a President of India on mercy petitions - Business Guardian
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Reflections of a President of India on mercy petitions

It is submitted that the President of India has no discretion in deciding the mercy petitions and such pleas are decided by the Home Minister of the Central Government in actual constitutional practice. It is the Union’s Home Minister who sends his inputs/advice to the President of India to complete the constitutional formalities as per Article 72 of the Constitution.

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The President of India is the constitutional head of the Union Government who exercises his constitutional powers and functions on the aid and advice of the Council of Ministers headed by the Prime Minister as per the mandate of Article 74 of the Constitution. The Constitution also empowers him to grant pardon to convicted persons under Article 72. Under this provision, the President can grant pardon, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases-(a) where the punishment or sentence is by a court martial; (b) where the punishment or sentence is for an offence against a law relating to a matter to which the Union’s executive power extends; and (c) of a death sentence. This, however, does not affect the power conferred by law on any officer of the Union armed forces to suspend, remit or commute a sentence passed by a court martial, as well as the power exercisable by the State Executive to suspend, remit or commute a death sentence. Generally, the common people have an impression that the President exercises this power personally and he can grant pardon to any convict at his own discretion. But this is not true. In actual constitutional scheme and practice, the President acts on the advice of the Home Minister of the Union Government and he has no personal say in these kinds of cases. The Supreme Court has also settled this jurisprudence in several cases including the Kehar Singh case. However, the President can ask the Home Minister to reconsider the matter but if the Home Minister reiterates his recommendation, the President is bound to act according to his advice.

Admittedly, no time limit is mentioned in the Constitution to decide the mercy petitions by the President of India or the Governors of States. But the Supreme Court has suggested the government to decide the mercy pleas expeditiously. Also, in several cases, the Supreme Court has held that inordinate delay in deciding a mercy plea could be a ground for commuting a death sentence into life. Any person, including a foreign national, can send a mercy petition to the President or the Governor who sends the same to the Ministry of Home Affairs for taking the necessary input. The convict can file the mercy plea from the jail either through the prison officers or through his/her lawyer. These mercy petitions can also be sent via email. This piece focuses on how the President of India decides on the mercy petitions.

In his memoirs titled “My Presidential Years”, former President of India Mr. Pranab Mukherjee has narrated the story of the disposal of mercy petitions. Mr. Mukherjee states that the disposal of mercy petitions is a very sensitive matter which needs careful reading and application of mind. This is what Mr. Mukherjee said about this issue: “The President is not the punishing authority; the punishment has already been given by the court. The President is the last resort. Thus, a humane aspect arises by the time the President comes into the picture. I was constantly aware while handling such cases that I was the last hope for the convict and that his life was in my hands. It was not an ordinary, routine government file that I was dealing with. I used to take more than a week to read the case history and the court judgments. But I took no more than three weeks in all to dispose off a file”.

Notably, during his presidential tenure (2012-17), President Pranab Mukherjee rejected 30 mercy petitions involving nearly 40 convicts as some of his predecessors had left many petitions undecided. On this issue, Mr. Mukherjee states in his memoirs: “My distinguished predecessors, A. P. J. Abdul Kalam and Pratibha Patil, had left a large number of cases pending. In fact, Kalam hardly disposed off any mercy pleas while Patil had decided on a few of them. The latter had granted clemency to 34 convicts and rejected just three petitions for mercy. Different Presidents have different approaches”. Further, Mr. Mukherjee states: “I saw no point in keeping such files pending. The once I dealt with dated as far back as the years 2000, 2004, 2005, and 2007. Either way, they had to be decided and I took it upon myself to discharge the responsibility. The law of the land had to be upheld. While I deliberated long and hard over the files of mercy pleas, once I had taken a decision-I let the issue rest. I may have had sleepless nights while considering my decision, but after the decision was made, the matter was closed as far as I was concerned. I did not follow the developments thereafter in detail, though I did keep in touch with the issue in the general sense. It is a futile exercise for a President to closely follow the trajectory after he has done his job. I cannot say for certain if my successors will follow my example of disposing of mercy petitions quickly; after all, I did not follow the examples of my predecessors”.

About the factors that played on his mind while deciding the several mercy petitions, this is what Mr. Mukherjee states in his memoirs: “Over the years, broad outlines for dealing with mercy petitions had evolved. However, three factors played on my mind. The first factor was that the case by nature must have involved ferocity and cruelty, and it must fall within the rarest of rare category. Two, the death sentence, given by the trial court, should have been upheld by the High Court and the Supreme Court without any dissenting voice-in other words, with unanimous verdicts. And three, the Government should have recommended the rejection of the petition. Once these conditions were met, the President ought to have no problems in setting aside the mercy petition. This is the position I took as President. Generally, once the President rejects a mercy plea, the matter does not return to the Supreme Court unless fresh issues of technicality or legality are introduced. In certain cases, appeals for mercy are made to the Governor. I do not recollect any instance where I granted mercy after the Governor had rejected the plea”.

It is noteworthy that President Pranab Mukherjee used to read the mercy pleas deeply along with the judgments of the courts that convicted the petitioners and other materials attached with the files. “I would carefully read through the details, and even the court proceedings and verdicts, if they were in English. If they were in Hindi or a local language, then I would seek to understand the gist of the issue. In most cases, the judgments were in English. I remember a case that I read in detail, where a daughter (in collaboration with her husband) had killed her father and younger brothers over a property issue. The Sessions Court’s ruling was in Hindi”.

On the issue of exercise of the President’s pardoning power, Mr. Mukherjee said that the President acts on the recommendation of the Home Minister of the Union Government and has no scope to use his discretion in such matters. “While I, as President, had applied my mind to all the cases of mercy pleas that were presented to me with recommendations of the government, the fact remains that the President normally goes by the recommendation of the Ministry of Home Affairs in such cases. If the government recommends the rejection of a mercy plea, then the President has to concur; if the government favours a mercy petition being accepted, the President does so. I believe that if the government of the day recommends that a mercy plea should be rejected, then I as President must not stand in the way”.

It is submitted that the President of India has no discretion in deciding the mercy petitions and such pleas are decided by the Home Minister of the Central Government in actual constitutional practice. It is the Union’s Home Minister who sends his inputs/advice to the President of India to complete the constitutional formalities as per Article 72 of the Constitution. However, the President can ask the Home Minister to reconsider the recommendation in the light of his comments/observations, etc. But thereafter the final power rests with the Home Minister and the President cannot impose his views on the government. The President and the government can also scrutinize the evidence on record of the criminal case and come to a different conclusion from that recorded by the court regarding the guilt of, and sentence imposed on the convict. Adjudication of a case is entirely different from the mercy petition’s disposal by the President or the Governor, as the case may be.

Time and again, the Supreme Court of India has observed in many cases that the President and the Central Government should not sit on the mercy petitions for a long time and should decide such pleas within a reasonable time. In some cases of inordinate delay in deciding the mercy petitions, the Supreme Court/High Courts have also commuted the death sentence to life imprisonment. But it all depends on the facts and circumstances of each case. In addition, if the President rejects the mercy petition of a convict, the aggrieved person can challenge the validity of the rejection of the mercy petition in the Apex Court on limited grounds. Also, until the disposal of the petition, the convict cannot be hanged by the prison officials. This is the jurisprudence relating to the disposal of mercy petitions in the country. Thus, the pardoning power belongs to the Central Government, not the President of India. Former President Pranab Mukherjee’s memoirs are very useful to learn about the actual disposal of mercy petitions. Let me conclude this piece with these insightful observations made by Justice Krishna Iyer made in the Maru Ram case: “It is not open either to the President or the Governor to take an independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns….that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power…that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment, silences speculation and obligates compliance”.

Time and again, the Supreme Court of India has observed in many cases that the President and the Central Government should not sit on the mercy petitions for a long time and should decide such pleas within a reasonable time. In some cases of inordinate delay in deciding the mercy petitions, the Supreme Court/High Courts have also commuted the death sentence to life imprisonment.

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Policy&Politics

India, Brazil, South Africa to press for labour & social issues, sustainability

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The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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Policy&Politics

India to spend USD 3.7 billion to fence Myanmar border

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India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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Policy&Politics

ONLY 2-3% RECOVERED FROM $2-3 TN ANNUAL ILLEGAL TRADE THROUGH BANKING: INTERPOL

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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Policy&Politics

FM defends Atal Pension Scheme, highlights guaranteed returns

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Finance Minister Nirmala Sitharaman defended the Atal Pension Yojana (APY) against Congress criticism, asserting its design based on choice architecture and a guaranteed minimum 8% return. She emphasized the scheme’s opt-out feature, facilitating automatic premium continuation unless subscribers choose otherwise, promoting retirement savings. Sitharaman countered Congress allegations of coercion, stating the APY’s guaranteed returns irrespective of market conditions, supplemented by government subsidies.

Responding to Congress’s claim of scheme misuse, Sitharaman highlighted its intended beneficiaries – the lower-income groups. She criticized Congress for its alleged elitist mindset and emphasized the scheme’s success in targeting the needy. Sitharaman accused Congress of exploiting vote bank politics and coercive tactics, contrasting it with the APY’s transparent framework. The exchange underscores the political debate surrounding social welfare schemes, with the government defending its approach while opposition parties raise concerns about implementation and efficacy.

Finance Minister Nirmala Sitharaman’s robust defense of the Atal Pension Yojana (APY) against Congress criticism highlights the ongoing debate over social welfare schemes in India. Sitharaman’s assertion of the APY’s design principles, including its opt-out feature and guaranteed minimum return, underscores the government’s commitment to promoting retirement savings among lower-income groups. The Atal Pension Yojana, named after former Prime Minister Atal Bihari Vajpayee, was launched in 2015 to provide pension benefits to workers in the unorganized sector. It aims to address the significant gap in pension coverage among India’s workforce, particularly those employed in informal and low-income sectors. The scheme offers subscribers fixed pension amounts ranging from Rs. 1,000 to Rs. 5,000 per month, depending on their contribution and age at entry, after attaining the age of 60. Sitharaman’s response comes after Congress criticism alleging the APY’s inefficacy and coercive tactics in enrolment.

Congress General Secretary Jairam Ramesh described the scheme as poorly designed, citing instances of subscribers dropping out due to unauthorized account openings. However, Sitharaman refuted these claims, emphasizing the APY’s transparent and beneficiary-oriented approach. The finance minister’s defense focuses on three key aspects of the APY: Choice Architecture: Sitharaman highlights the opt-out feature of the APY, which automatically continues premium payments unless subscribers choose to discontinue.

This design element aims to encourage long-term participation and ensure consistent retirement savings among subscribers. By simplifying the decision-making process, the scheme seeks to overcome inertia and promote financial discipline among participants. Guaranteed Minimum Return: Sitharaman underscores the APY’s guarantee of a minimum 8% return, irrespective of prevailing interest rates. This assurance provides subscribers with confidence in the scheme’s financial viability and incentivizes long-term savings.

The government’s commitment to subsidizing any shortfall in actual returns further strengthens the attractiveness of the APY as a retirement planning tool. Targeting the Needy: Sitharaman defends the predominance of pension accounts in lower income slabs, arguing that it reflects the scheme’s successful targeting of its intended beneficiaries – the poor and lower-middle class. She criticizes Congress for its alleged elitist mindset and suggests that the party’s opposition to welfare schemes like the APY stems from a disconnect with the needs of marginalized communities. Sitharaman’s rebuttal also addresses broader political narratives surrounding social welfare policies in India.

She accuses Congress of exploiting vote bank politics and coercive tactics, contrasting it with the transparent and inclusive framework of the APY. The exchange underscores the ideological differences between the ruling Bharatiya Janata Party (BJP) and the opposition Congress, with each side advocating for their vision of social welfare and economic development. In addition to defending the APY, Sitharaman’s remarks shed light on the broader challenges and opportunities facing India’s pension sector.

Despite significant progress in expanding pension coverage through schemes like the APY, the country still grapples with issues such as financial literacy, informal employment, and pension portability. Addressing these challenges requires a multifaceted approach involving government intervention, private sector participation, and civil society engagement.

As India strives to achieve its vision of inclusive and sustainable development, initiatives like the APY play a crucial role in promoting economic security and social equity. Sitharaman’s defense of the scheme underscores the government’s commitment to addressing the needs of vulnerable populations and ensuring their financial well-being in the long run.

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Economic

Regulatory steps will make financial sector strong, but raise cost of capital

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India’s financial system regulator, the Reserve Bank of India (RBI), is demonstrating a serious commitment to improving governance and transparency at finance companies and banks, with the RBI’s recent measures aimed at curtailing lenders’ overexuberance, enhancing compliance culture and safeguarding customers.

While the global ratings firm has appreciated the RBI’s “diminishing tolerance for non-compliance, customer complaints, data privacy, governance, know-your-customer (KYC), and anti-money laundering issues”, it has cautioned that increased regulatory risk could impede growth and raise the cost of capital for financial institutions. “Governance and transparency are key weaknesses for the Indian financial sector and weigh on our analysis. The RBI’s new measures are creating a more robust and transparent financial system,” says S&P Global Credit Analyst, Geeta Chugh. “India’s regulator has underscored its commitment to strengthening the financial sector. The drawback will be higher capital costs for institutions,” Chugh cautions.

The RBI measures include restraining IIFL Finance and JM Financial Products from disbursing gold loan and loans against shares respectively and asking Paytm Payments Bank (PPBL) to stop onboarding of new customers. Earlier in December 2020, the RBI suspended HDFC Bank from sourcing new credit card customers after repeated technological outages. These actions are a departure from the historically nominal financial penalties imposed for breaches, S&P Global notes.

Besides, as the global agency points out, the RBI has decided to publicly disclose the key issues that lead to suspensions or other strict actions against concerned entities and become more vocal in calling out conduct that it deems detrimental to the interests of customers and investors. “We believe that increased transparency will create additional pressure on the entire financial sector to enhance compliance and governance practices,” adds Chugh. The global agency has also lauded the RBI’s recent actions demonstrating scant tolerance for any potential window-dressing of accounts.

These actions include the provisioning requirement on alternative investment funds that lend to the same borrower as the bank finance company. Amidst the possibility of some retail loans, such as personal loans, loans against property, and gold loans getting diverted to invest in stock markets and difficulty of ascertaining the end-use of money in these products, S&P Global underlines the faith of market participants that the RBI and market regulator, the Securities and Exchange Board of India, want to protect small investors by scrutinizing these activities more cautiously.

On the flip side, at a time of tight liquidity, the RBI’s new measures are likely to limit credit growth in fiscal 2025 (year ending March 2025). “We expect loan growth to decline to 14 per cent in fiscal 2025 from 16 per cent in fiscal 2024, reflecting the cumulative impact of all these actions,” says Chugh. The other side of the story is that stricter rules may disrupt affected entities and increase caution among fintechs and other regulated entities and the RBI’s decision to raise risk weights on unsecured personal loans and credit cards may constrain growth. Household debt to GDP in India (excluding agriculture and small and midsize enterprises) increased to an estimated 24 per cent in March 2024 from 19 per cent in March 2019. Growth in unsecured loans has also been excessive and now forms close to 10 per cent of total banking sector loans.

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Policy&Politics

Penalty provisions for dissemination of deepfakes can create deterrent effect: CUTS

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A senior official from the global think tank CUTS International has emphasized the significance of penalty provisions in deterring the creation and spread of deepfakes and misinformation. Amol Kulkarni, Director of Research at CUTS International, highlighted the need for technological interventions to curb the misuse of AI-generated content.

CUTS International, Director, Research, Amol Kulkarni told the media that internet users would require adequate opportunities to verify the genuineness of content and it becomes important during the election season while the role of credible fact-checkers and trusted flaggers becomes crucial. He said that while the government advisory on March 15 removes permission requirements, it continues to rely on information disclosures to users for making the right choices on the Internet.

“Though transparency is good, information overload and ‘popups’ across user journeys may reduce their quality of experience. There is a need to balance the information requirements, with other implementable technological and accountability solutions which can address the problem of deepfakes and misinformation,” Kulkarni said. After a controversy over a response of Google’s AI platform to queries related to Prime Minister Narendra Modi, the government on 1 March issued an advisory for social media and other platforms to label undertrial AI models and prevent hosting unlawful content. The Ministry of Electronics and Information Technology in the advisory issued to intermediaries and platforms warned of criminal action in case of non-compliance. The previous advisory has asked the entities to seek approval from the government for deploying under trial or unreliable artificial intelligence (AI) models and deploy them only after labelling them of “possible and inherent fallibility or unreliability of the output generated”.

The Ministry of Electronics and IT on March 15 issued a revised advisory on the use and rollout of AI-generated content. The IT ministry removed the need for government approval for untested and under-development AI models but emphasised the need for labelling AI-generated content and information to users about the possible inherent fallibility and unreliability of the output generated.

Kulkarni said that addressing the issue of deepfakes and misinformation will require clarifying the responsibility of all stakeholders in the internet ecosystem: developers, uploaders, disseminators, platforms and consumers of content. “Penalty provisions for the development and dissemination of harmful deepfakes and misinformation could also create a deterrent effect. Technological solutions to tag potentially harmful content and shifting the burden on developers and disseminators to justify the use of such content could also be designed,” he said.

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