A five-judge constitution bench of the Supreme Court will take up for hearing Sep 6 the question of whether a governor who fails to perform his duties can be made answerable to the court.

A three-judge bench comprising Chief Justice R.C. Lahoti and judges G.P. Mathur and P.K. Balasubramaniam referred the issue to the constitution bench as it involves interpreting Article 361 of the constitution that provides immunity to a governor from court proceedings.

The court was hearing a batch of petitions challenging the president's May 23 order dissolving the Bihar assembly.

Additional Solicitor General Gopal Subramaniam argued that whatever might be the allegation against the governor, he could not be made a party to court proceedings due to the immunity granted to him under Article 361.

At this juncture, the bench put a question to Subramaniam: "What will be the position if a governor fails to perform his constitutional obligations and duties. Should not the court give him a direction to perform his constitutional functions, particularly when his action suits the party in power?"

Subramaniam maintained that irrespective of the situation, a governor enjoyed absolute immunity and was not answerable to a court.

Subramaniam and Attorney General Milon K. Banerjee suggested that since it involved interpretation of Article 361 the matter should be referred to a five-judge bench.