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Priniciple of Presumption of Constitutionality

edited January 27 in Polity & Governance
Context: The author is discussing how the verdict of Naz Foundation vs GoI was overturned 4 years later in Suresh Kr Kaushal vs Naz Foundation. The cited arguments that are relevant in the context of Indian counstitutional identity were -
1. The sancity of the 'Principle of presumption of constitutionality'
2. The impropriety of 'extensively relying upon the judgements of other jurisdictions'

Can someone elaborate on this? Thanks in advance.
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Comments

  • @mayurasharman Le bhai dekh le, isme JNU wali boo aa rahi hai kya tujhe. Agar kuch pata hai is bare mein to please contribute. ForumIAS me waise bhi wo pehle wale type discussions ab anhi hote. Please don't act as an impediment to it.
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  • On a nice sunny day someone like me loves to wade into such discussions, but neither the day is bright nor my mood sir, however not to offend you or to dissuade to enquire further, I have few basic questions pertaining this particular question and a consistent pattern in other questions you asked as well.
    Definitely Law is not your optional, because I never came across such "concepts" which forms the basis of your questions here and in other threads.
    My question- Who is the "author"? I mean are you framing questions after reading a newspaper or magazine article or some academic text? I reckon its just a general commentary, not strictly legal in nature.
    2nd- Please elaborate the context properly, everyone knows the cases here but merely citing the case doesnt necessarily contextualises a problem. Everywhere you seem to start the question with "context", however I am soo unable to figure out the context despite best of my effort.
    3rd- " The cited arguments" - which arguments? Please mention...

    Basically try to simplify your query after providing a background comprehensive enough to help others clearly formulate the issue.
  • @preetkarandhaliwal
    1. The book which I am referring to is - The Oxford Handbook of the Indian Constitution - Sujit Choudhry; Madhav Khosla; Pratap Bhanu Mehta - Oxford University Press
    2. This particular doubt arose when I was going through Chapter 7 of the book - Constitutional Identity - Gary Jeffery Jacobson
    3. Most of the chapters are presented as monologues coming form eminent scholars raging from Upendra Baxi to retired CJIs of India. How can I question the extent of legalism flowing in their own commentaries when I, as a non-Law student, myself am a novice as far the dealings of Indian Contitution goes.

    I will further elaborate the context to this in my answer below. Before that could you just please try to ellaborate on what was not exactly clear to you when I pinpointed the cases above?
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  • Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.
  • edited January 27
    @preetkarandhaliwal Seems you have gone offiline now. Let me try to address your points 2 and 3.

    2. The discussion was regarding the oversturning of the case decisions by the Supreme Court as regards to the criminalising of 'homosexual conduct'. In the former case, the HC of Delhi read that the provisions of IPC that had criminalised these consensual sexual acts were unconstitutional. Now the reasons cited by the HC were larlegy imports of the constitutional right of privacy (+same sex rights) outsourced from abroad (esp American precedents). Plus a few other arguments were cited as well.

    The judges failed to elucidate the relevance of their opinions devoted to 'other' people's constitutions for maintaining the spirit of 'their' constitution. This ruling was considered as an embodiment of judiciary's commitment to 'transformative constitutionalism'.

    Now coming to the latter case, this affirmations get challenged in the overturning of DHC's decision by the SC. The nullification was a disappointment to those who were citing the DHC's decision as an endorsement of a progressively inclusive political community.

    3. The arguments did not coming from the author, but form the SC during its reading of the case.

    Hope its much clearer now. :) :)

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  • edited January 27

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
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  • Are bhai, ye sab toh facts of the case hain na. I wasnt talking about these. That you pinpointed a case itself clarifies case facts. You didnt mention the arguments that were made my the differing side ie appellants, the respondents and the bench.
    Citing a case is not contextualising, citing the arguments which made you frame the question number one regarding the sanctity of the principle of presumption of constitutionality is important.
    Also the case is not yet settled as matter is sub judice in wake of acceptance of curative petition. There is no finality yet.
    As far as your last question is concerned, there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure. Only issue will be when a case law is cited which runs against the laws of our country or principles of our constituion.
  • edited January 27
    @mayurasharman Bhai aap hi light maro yar ispar, pura context samjha diya diya hain yahan. Thoda simple words me ellaborate kar dena yaar.
    PS - I don't adhere to liberalism in any of its manifestations . Period. Lol. Ab to answer kr de bhai.
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  • akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
  • edited January 27

    Are bhai, ye sab toh facts of the case hain na. I wasnt talking about these. That you pinpointed a case itself clarifies case facts. You didnt mention the arguments that were made my the differing side ie appellants, the respondents and the bench.
    Citing a case is not contextualising, citing the arguments which made you frame the question number one regarding the sanctity of the principle of presumption of constitutionality is important.
    Also the case is not yet settled as matter is sub judice in wake of acceptance of curative petition. There is no finality yet.
    As far as your last question is concerned, there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure. Only issue will be when a case law is cited which runs against the laws of our country or principles of our constituion.

    Ab apne sahi me kuch had tak pakda hai mere doubt ko. The author failed to mention any arguments as such, bas usne arguments ko explicitely na mention kar in do broad headings me qualify kar diya - in other words 'saar bata diya' - itna keh kar author bhaiya kat liye. Uspar thoda prakash dalen ki ye particular subheading - 'Principle of presumption of Constituionality' kyun use kari gayi hai idhar. Aur ye bhi batayen ki iska meaning aur relevance aur is particular case me banch dwara presented arguments se connect kya hai?

    there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure
    Bhai this was not a question, ye author ne apni comments diye hain. Maine iske legality par kab argument kiya? I completely understand what you are trying to say.
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  • akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    The associated email has been deleted. The ID is defunct.
  • akkib89 said:

    mayurasharman Bhai aap hi light maro yar ispar, pura context samjha diya diya hain yahan. Thoda simple words me ellaborate kar dena yaar.
    PS - I don't adhere to liberalism in any of its manifestations . Period. Lol. Ab to answer kr de bhai.

    Yaar, apan log ek hi boat me baithe hain. Mai bhi mains likh ke aaya hoon, interview call ka almost surely hopeful hoon. Second attempt hai. Aajkal kuchh achchi news aa gayi hain, ek badhiya backup option mil gaya hai isliye thoda relaxed hoon. Ergo, Forum pe bakchodi kar raha hoon. :joy: :joy: :joy:

    Yaar, tumharaa thread dekh ke laga lagaa ki ye bandaa abhi pre, mains diya nahi and hi-fi baatein kar raha hai. Isse thodaa #gyan de doon. Iss ka bhalaa ho jaaye. Mai usually comment likh ke reply padhne waapas nahi aata and users ki Forum history me kabhi nahi jhaanktaa. So, I didn't know... Abb tumne tag kar hi diya to aana hi padaa.

    Sorry mate.. My bad... #gyan o:)
    CSM 2015 | CSE 2016 - Ranked it Out!!
    Thank Lord Shiva...
  • ^ Hum to bhaiyaa Vivekanand fan hain, ab baato me jyada jhalkega to log damru thama denge...Lol. :mrgreen:
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  • akkib89 said:

    akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    Sahi baat hai bhai aapki.
  • akkib89 said:

    akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    Sahi baat hai bhai aapki.
    Phir yaar aap dil par le rahe ho :|
    Ek cheez batana aap, and I may be completely wrong here, GS2 me waise bhi mujhne nahi ukhdta hai zyada, but am I missing something here. Just be straightforward bhai. Kya missing hai mere understanding me.
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  • The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.
  • edited January 27
    abhi44 said:

    The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.

    Thanks for the reply man.

    2. I am not facing that much of a problem while reading the text. No issues on that. Already well versed with Indian polity to a large extent. But just for the sake of clarity (no exaggeration) I would like to point out that I can easily comprehend 70-80% of the text in one read. The issue lies in the 'accuracy' of my understanding. That, what the author has tried to imply - am I getting the same exact meaning? - the problem lies exactly in this domain. I have to be keep reassuring myself in this respect so that I am not be making any false assumptions just for the sake of completion. You law students are already having an added advantage from the start. Really envy you guys. :p Plus you have a great faculty to resort to for doubt clarification. So I just explained the sole reason why I post here. I could, of course, verify things o the internet, but time is a precious commodity. Why not rely on experts. :#
    3. Yup. I get it.
    4. Thanks for the recommendations. Will surely look into,Austin, but isn't it a bit outdated? Someone told me that the text in this one was quite updated. BTW it was a gift from someone.
    5. Not doing it for UPSC. Mainly a hobby-read.

    Fine. I'll post all doubts in one thread. That may be convenient for all. In the begining I was doing the same. But different people, different opinions. :p

    Thanks again.
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  • @preetkarandhaliwal agar dimmaag thada ho gaya ho aur free ho to, Bhai aap ek cheez batana yaar, Plato ne jo republic batayi hai aur post 1789 jo republic ki concept aayi usme kya diffrences they.
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  • abhi44 said:

    The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.

    +1
  • @preetkarandhaliwal Bhai Pade likhe admi lagte ho, Marcus Aurelius padi hai? Why itna dil pe lena dude. :mrgreen:
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  • edited January 27
    akkib89 said:

    @preetkarandhaliwal agar dimmaag thada ho gaya ho aur free ho to, Bhai aap ek cheez batana yaar, Plato ne jo republic batayi hai aur post 1789 jo republic ki concept aayi usme kya diffrences they.

    Vai aisa nahi lagta ki Tumne Plato padhi hai! Donon main zameen ansmaan ka antar hai! Lag rha hai aese hi questions puch rahe ho. Delho time ki paucity hai sabko toh agar Koi genuine doubt ho, Tabhi pucha karo! Don't compare apples with oranges. Philosopher king wali semi communist republic ko tum ek modern republic se compare karwa rahe ho!

    With that said,

    Good luck! :)
    An Ounce of Action Is Worth a Ton of Theory
  • @dragonborn Bhai aap kyun tension le rahe ho, Preet ji se maine bas yahi kaha ki yaar ek do line me simple words me samjha den. Unhone itna lamba chauda lecture dediya. Maine socha law wale hain, 2-3 line me clear kar denge. Par wo to mudde pe na aakar idhar udhar hi bhatak rahe the. Unko bhi pata tha main kya poochna chaah rha hoon. Par jawab nahi de rahe the.
    Doubt genuine thi. Dekhiye bhai, main is book ko 6-7 din me khatm kr doonga. Afar usme doubts ho rahen hain to forum me pooch raha hoon. Ab isme kya galat hai bhai. Koi doubt timepass kaise ho sakti hai.
    How areyou deducing this. Mera dimag to nahi phira hai ki main poochta rahoon bina matlab ke, aap batao yaar.
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  • Bro are you preparing for 2017 or 2016 interview?

    Agar interview ke liye prepare kr rhe ho toh itna complicated books na padhke I think you should focus more on your daf!

    Aur agar 2017 ke liye padh rhe ho toh gs main nato maine aese questions kahi suna hai nahi dekha hai. Not trying to discourage you but mujhe aesa lagta hai ki ye padhke samajheke forum pe debate karne se acha hai ki aap laxmikanth ki multiple revisions maar lo!

    *just my 2 cents* :)
    An Ounce of Action Is Worth a Ton of Theory
  • Bro are you preparing for 2017 or 2016 interview?

    Agar interview ke liye prepare kr rhe ho toh itna complicated books na padhke I think you should focus more on your daf!

    Aur agar 2017 ke liye padh rhe ho toh gs main nato maine aese questions kahi suna hai nahi dekha hai. Not trying to discourage you but mujhe aesa lagta hai ki ye padhke samajheke forum pe debate karne se acha hai ki aap laxmikanth ki multiple revisions maar lo!

    *just my 2 cents* :)

    I totally get you bhai. And I don't disagree with whatever you just said.
    Aap ek kaam karna. Newyan sir ke kehne par I made a new thread for each doubt. Thode zyada threads ho gaye. I will keep posting the doubts in a single thread now on. Aapko koi questions bha jaye to please answer, nahi bhai to ignore. Bas itna hi kahunga.

    Yaar my hobby is constitutional debates. Usi par build up kar rha hoon. Hope you are getting me.

    @preetkarandhaliwal Hope you are getting me too sire.

    TC.
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  • But what's your original doubt? Principle presumption of constitutionality main Plato aur modern republic kaise aa gaya?

    Plato opposed the idea of a written document to guide a philosopher king. According to him, you cannot restrict an expert practitioner of medicine with the book of medicine. It was aristotle who suggested that a state should ideally be governed by laws and not a philosopher king.
    An Ounce of Action Is Worth a Ton of Theory
  • But what's your original doubt? Principle presumption of constitutionality main Plato aur modern republic kaise aa gaya?

    Plato opposed the idea of a written document to guide a philosopher king. According to him, you cannot restrict an expert practitioner of medicine with the book of medicine. It was aristotle who suggested that a state should ideally be governed by laws and not a philosopher king.

    Bhai wo fizul ki bakar hai, mudde se hatkar. Don't delve into that please. :)
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  • edited January 27
    akkib89 said:



    Yaar my hobby is constitutional debates. Usi par build up kar rha hoon. Hope you are getting me.

    Bro, itti tough hobby kyu li. The coin can fall on any side. Some peculiar hobbies may fetch you 210+ but it's safer to stick with run-of-the-mill. Koi liberal-intellectual board me pad gaya to achche se maar lega.

    Maine to apnaa IIT ka Silver Medal, GATE ki rank and other kai achievements bhi nhi likhe. Ekdam cutesy sa DAF hai. 4 lines ka :p
    Hobbies me - "Playing badminton and watching sports. Chatting with grandparents during free time."

    Raveendran sir ko dikhaya to bole sahi hai. Grandparents wali line extra touch ke liye :) Apne ko bas 180+ marks chahiye. Ummeed hai ki itte marks IPS to dila hi denge - my first choice :#
    CSM 2015 | CSE 2016 - Ranked it Out!!
    Thank Lord Shiva...
  • akkib89 said:



    Yaar my hobby is constitutional debates. Usi par build up kar rha hoon. Hope you are getting me.

    Bro, itti tough hobby kyu li. The coin can fall on any side. Some peculiar hobbies may fetch you 210+ but it's safer to stick with run-of-the-mill. Koi liberal-intellectual board me pad gaya to achche se maar lega.

    Maine to apnaa IIT ka Silver Medal, GATE ki rank and other kai achievements bhi nhi likhe. Ekdam cutesy sa DAF hai. 4 lines ka :p
    Hobbies me - "Playing badminton and watching sports. Chatting with grandparents during free time."

    Raveendran sir ko dikhaya to bole sahi hai. Grandparents wali line extra touch ke liye :) Apne ko bas 180+ marks chahiye. Ummeed hai ki itte marks IPS to dila hi denge - my first choice :#
    Bhai is baar liberal intellectual drift me behne ki umeed kam hai......Par locha to hai.
    Par ab pchtayat hot kya, likh di to likh di.

    Chatting with grandparents......Lollllzz. Ye sala dimag me nahi aya.

    Sahi hai bhai ips me bhi mauj hi hai. Bhai rank to optional bhi decide karegi. Aur ias ips 180+ me to mil hi jayenge.
    Touch wood. Best of luck bhai.
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