The Supreme Court on Thursday said free and fair elections can’t be ensured unless the Election Commission not just remained independent but also appeared to be independent even as the Centre defended the law on appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).While hearing PILs challenging the 2023 law on appointment of the CEC and ECs that replaced the CJI with a Union Cabinet minister in the PM-led three-member selection panel, a Bench of Justice Dipankar Datta and Justice SC Sharma asserted that independence of the Election Commission was a facet of the “basic structure” of the Constitution, as free and fair elections depended on it.”The level of confidence must be to that degree (that it must appear) as if there had been a third neutral person in the selection committee. Why should it be a minister from the cabinet?” asked the Bench which had on May 7 lamented the failure of successive governments to introduce a law to ensure the independent functioning of the Election Commission.”It is not sufficient for the Election Commission to be independent, it has to appear to be independent, the Bench told Attorney General R Venkataramani, who asserted that Parliament has the absolute right to legislate and that it was not bound to follow the “stop-gap” arrangement suggested by a five-judge Constitution Bench in the Anoop Baranwal judgment.The Attorney General cautioned the Bench against “entering the legislative arena” or acting as a “second chamber of Parliament”.The Baranwal judgment was an exercise of Article 142 (discretionary power to do complete justice) and did not constitute a binding law under Article 141 that could override an Act of Parliament, he said, adding the top court should not strike down a law based on hypothetical bias.”We have to eat the pudding to know if it’s bad. Unless the ECs demonstrate a lack of independence in their actual functioning, the law cannot be held invalid,” Venkataramani said, adding such a question can’t be answered in the abstract and that it’s a question of fact and evidence.Brushing aside the Centre’s concerns on judicial overreach, the Bench sought to emphasise mutual respect between the organs of the State. “Parliament may attribute anything to the judiciary, but we know our Lakshman Rekha. We will never do that,” Justice Datta said.Venkataramani said if the petitioners’ prayer for declaring the law unconstitutional failed, no other prayer survived.Former IAS officer SN Shukla alleged on behalf of NGO ‘Lok Prahari’ that the new Act was a “fraud on the Constitution as it intentionally bypassed the safeguards suggested by the Supreme Court in the Anoop Baranwal judgment.Ending the 73-year-old system of the government appointing the Chief Election Commissioner and Election Commissioners, the Supreme Court had on March 2, 2023 in the Anoop Baranwal case ordered creation of a three-member panel comprising the PM, Leader of Opposition in the Lok Sabha or leader of largest opposition party and the CJI to select them. In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph (since retired) had, however, said, “This norm will continue to hold good till a law is made by Parliament.”In December 2023, Parliament enacted the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023, that replaced the CJI with a Union Cabinet Minister in the three-member selection panel. The top court had on March 21, 2024 refused to stay the 2023 Act.The petitioners contended that the 2023 law went against the Supreme Court’s judgment in the Anoop Baranwal case as it replaced the CJI with a Union Cabinet minister in the panel for selection of the CEC and ECs.However, the Bench had on May 7 pointed out that the selection mechanism laid down by the top court in the Baranwal verdict was a stop-gap arrangement till Parliament enacted a law.