The Supreme Court on Thursday said free and fair elections are a part of the basic structure of the Constitution, and this cannot be ensured unless the Election Commission is independent and also appears to be independent.

A bench comprising Justices Dipankar Datta and Satish Chandra Sharma made the observations during the final hearing on a batch of six petitions challenging the constitutional validity of a new law governing the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (EC).

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on January 2, 2024, mandates that the CEC and the ECs are appointed by the President on the recommendation of a Selection Committee consisting of the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition in the Lok Sabha.

The law replaces the Chief Justice of India with a Union Cabinet Minister on the three-member Selection Committee.

While hearing the submissions of Attorney General R Venkataramani on behalf of the Centre, Justice Datta said, "It is not sufficient for the Election Commission to be independent; it has to appear to be independent."

The attorney general mounted a robust defence, asserting that Parliament has the absolute right to legislate and is not bound to follow the "stop-gap" arrangement suggested by a five-judge bench in the Anoop Baranwal judgment.

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.

The Centre's counsel said the bench should not strike down a law based on hypothetical bias.

"We have to eat the pudding to know if it is bad. Unless the ECs demonstrate a lack of independence in their actual functioning, the law cannot be held invalid," Venkataramani said.

He cautioned the bench against "entering the legislative arena" or acting as a "second chamber of Parliament."

Justice Datta said independence of the Election Commission is a facet of the "basic structure" of the Constitution, as free and fair elections depend 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?" the bench asked.

Referring to the attorney general's submissions on judicial overreach, Justice Datta emphasised the 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," he said.

"Their (the petitioners') first prayer is against the validity of the law. If that fails, no other prayer survives," the attorney general submitted.

"The question whether the Election Commission is independent cannot be answered in the abstract. It is a question of fact and evidence," he argued, "If the court decides what the best manner to appoint election commissioners is, then the court enters the legislative arena."

"We have to eat the pudding to know whether the pudding is bad or not," Venkataramani said, defending the new law.

As the hearing progressed, the bench discussed the possibility of referring the matter to a larger five-judge constitution bench under Article 145(3), noting that the case involves a "substantial question of law" regarding the interpretation of Articles 14 and 324.

While the top law officer supported the idea, senior advocates Gopal Sankaranarayanan and Shadan Farasat opposed it, saying that a two-judge bench is competent to decide the matter based on existing precedents regarding Article 14 (right to equality).

At the outset, former IAS officer S N Shukla, appearing as an office-bearer of the petitioner NGO 'Lok Prahari', argued that the new Act is a "fraud on the Constitution."

Shukla said that the Act intentionally bypassed the safeguards suggested by the Supreme Court in the Anoop Baranwal judgment.

He alleged that the government obtained approval for the Bill by concealing vital information from Parliament, including reports from the National Commission to Review the Working of the Constitution.

"The Statement of Objects and Reasons doesn't even mention the need to ensure the independence of the Commission," he said.

The selection process is a "one-man show," where the Leader of Opposition is a mere figurehead whose dissent can be ignored by the Prime Minister and the Cabinet Minister in the selection panel, he said.

Additionally, Shukla challenged the appointments of the incumbent CEC and ECs under the new law, alleging that they lacked the "special knowledge and experience" contemplated under the statute and were selected for "political considerations".

He cited the roles of the appointees in sensitive issues such as the Uniform Civil Code in Uttarakhand and the scrapping of Article 370.

Disagreeing with Shukla's submissions, Justice Satish Chandra Sharma asked him to confine to legal submissions, saying, "They are IAS officers; they have worked as collectors and returning officers. They have the experience in conducting elections."

"The purpose of such a committee is to appoint someone acceptable to all or most political parties, not merely the ruling party," Shukla argued.

"They are IAS officers. You were also one," Justice Sharma said, adding that district collectors routinely serve as returning officers and election observers.

The hearing remained inconclusive and is set to continue.