The Supreme Court Wednesday refused to stay elections to the Bihar assembly, even as a constitution bench 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 ruled that constitution bench would also hear the plea for staying the elections.

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

When P.S. Narasimha, counsel for one of the petitioners, specifically pleaded for staying the election process, the court queried Election Commission counsel S. Murlidhar, who said a press release announcing the poll schedule was expected to be issued in the next two to three days.

When the bench wanted to know whether the press note had any statutory force, Murlidhar said though it did not have any statutory force, it would mean the commencement of the poll process and the coming into force of the Model Code of Conduct.

He said the commission usually issued the press release at least three weeks before the proposed dates of election. The Bihar polls would be held in three or four phases due to the number of holidays in October-November, counsel added.

Murlidhar said that as per an apex court judgement, the election process had to be completed within six months from the date a legislature was dissolved. In the case of Bihar, this had to be done before Nov 22.

Initially, the bench asked Murlidhar whether the commission could wait till Sep 6 for issuing the press release. Additional Solicitor General Gopal Subramaniam strongly objected to this, saying any such observation would amount to a stay.

Subramaniam argued that any order on the impending election process would hit at the root of the May 23 presidential proclamation that intended to put in place a popular government through fresh elections.

When the petitioners reiterated their plea for staying the poll process, the bench said it would not pass any orders on this and they could raise the matter before the constitution bench.

The court referred the governor's immunity issue to the constitution bench as it involved interpreting Article 361 of the constitution.

Subramaniam argued that whatever be the allegation against a 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.