All India Bar Examination (AIBE) 2-II Previous Year Question Papers with Answers

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21.

A held an office under a State Government. A was not entitled to receive any salary or compensation under the terms of office, but was entitled to claim reimbursement of expenses incurred in the course of discharge of A's duties. The terms of office provided a limit on the expenses that could be incurred, and that would be reimbursed. Later, A stands for election to the State Legislature, and is elected. A member of the opposing party challenges A's membership in the State Legislature on the ground that A holds an office of profit under the government. Which of the following is most accurate in this case ?

Principle :

Article 102 of the Constitution provides that any person who holds an office of profit under the Government of India or the government of any State is disqualified from being chosen as, and for being, a member of either House of Parliament.
A: The challenge will fail, since it should have been raised at the time of election, or when nomination papers were filed, rather than after the elections have been conducted, and A has already become a member of the house.
B: The challenge will fail, since A is not entitled to any salary or compensation under the terms of office. As such, it cannot be said that A held an "office of profit" under the State Government.
C: The challenge will succeed, since the challenge was to A's membership in the house, and can be raised even after the elections are over.
D: The challenge will succeed, since the amount of compensation or allowances paid to A under the terms of office are irrelevant; the reimbursement allowance itself is enough to constitute an "office of profit".
E: None of the above.

The answer is: B

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Explanation

The most accurate option in this case is:

C: The challenge will succeed since the challenge was to A's membership in the house, and can be raised even after the elections are over.

Explanation:

 In this case, the disqualification under Article 102 of the Indian Constitution is based on holding an "office of profit" under the government. The fact that A is not entitled to receive a salary or compensation under the terms of office is not determinative of whether A holds an office of profit. What is crucial is whether the position A held qualifies as an "office of profit."

The challenge can be raised after the elections because if it is found that A holds an office of profit under the government, it would render A disqualified from being a member of the State Legislature. The disqualification can be raised at any time during A's tenure as a legislator, not just during the nomination or election process.

Options A, B, and D do not correctly address the legal principles involved in determining whether A holds an office of profit, and they do not consider the timing of the challenge. Option E is not accurate because option C correctly reflects the relevant legal principles.