Accidental 'Saffron Down' Display Of National Flag Not Offence Without Intent To Insult: Kerala High Court

Justice A. Badharudeen was delivering the judgment in a petition to quash the criminal proceedings pending against the petitioner for offence punishable under Section 2 of the Prevention of Insults to National Honour Act.

The case arose from a photograph of the petitioner holding the Indian National Flag with the saffron portion facing downward. The photograph had been circulated in a WhatsApp group. Based on information received through a WhatsApp group, the police registered an FIR alleging an offence under Section 2 of the 1971 Act.

Section 2 of the Act criminalises, among other acts, showing disrespect to or bringing into contempt the Indian National Flag or the Constitution in a public place or in any other place within public view. Explanation 4 to the provision specifies various acts constituting disrespect, with clause (l) expressly referring to intentionally displaying the Indian National Flag with the “saffron down.”

The petitioner submitted that he had participated in the “Har Ghar Tiranga” programme to honour the Indian National Flag, and as part of the same, a photo was taken at his residence in Kozhikode and forwarded in a private WhatsApp group consisting of BJP members from Lakshadweep.

It was further submitted that the petitioner's participation in the “Har Ghar Tiranga” programme itself indicate that he has due respect to the Indian National flag, and at the time of taking the photograph, the Indian National flag was inadvertently depicted with the saffron colour facing downward, and the same was neither intentional nor deliberate.

It was also submitted that the WhatsApp group could not be held either as a public place or a place within public view, hence the offence alleged against the petitioner could not be made out prima facie.

The respondents argued that merely because the whatsapp group is private, the same would not, by itself, take the alleged act outside the purview of the Act, 1971.

The Court noted that Explanation 3 to Section 2 of the Act defines a public place as one intended for use by, or accessible to, the public, and the Act does not separately define “place within public view.”

The Court thus held that a place within public view may include a private place where the presence of, or access by, members of the public to watch the proceedings is possible. It thus observed that even a private WhatsApp group involving many members could qualify as a place within public view for the purposes of Section 2.

“There is a subtle difference between the expressions “public place” and “in any other place within public view”. In this connection, it is relevant to note that a public place may be understood as stated in Explanation 3, whereas a place within public view can be any other place, including a private place, where the presence of, or access by, the public to watch the proceedings is possible. In such circumstances, even a private WhatsApp group involving many members could not be held as a place not within public view as defined under Section 2 of the Act, 1971.” the Court held.

The Court then went on to examine Section 2 of the Act and drew a distinction between the prohibited act itself and an accidental occurrence of the same.

The Court noted that the petitioner displayed the photograph of the Indian National Flag as part of “Har Ghar Tiranga” programme, intended to honour the Indian National Flag and the prosecution has no case that the petitioner intentionally displayed the flag with the saffron colour down.

The Court thus held that intentionally displaying the flag with the saffron portion downward, with a view to insult the National Flag and the Constitution, would attract Section 2. However, a non-intentional, accidental or mistaken act, without intention or mens rea to insult the National Flag, would not attract the penal provision.

“Thus, it is held that intentionally displaying the Indian National Flag with the saffron colour down with a view to insult the Indian National Flag and the Constitution of India is an offence punishable under Section 2 of the Act, 1971. At the same time, non intentional, accidental or mistaken acts of doing the same, without any intention or mens rea to insult the Indian National Flag and the Constitution of India, would not attract the offence.” the Court held.

Finding that the prosecution materials did not prima facie establish the requisite intention, the Court quashed the proceedings arising against the petitioner.

Case Title: Mohammed Kasim H.K v Union Territory of Lakshadweep and Anr.

Case No: Crl.MC 7673/ 2024

Citation: 2026 LiveLaw (Ker) 531

Counsel for Petitioner: Ajit F Anjrekar, G.P. Shinod, Govind Padmanabhan, Atul Mathews, Gayathri S.B