The Kerala High Court has quashed criminal proceedings against a Lakshadweep man who was accused of insulting the Indian National Flag after a photograph showing the saffron portion facing downward was circulated on WhatsApp. Justice A. Badharudeen held that Section 2 of the Prevention of Insults to National Honour Act, 1971 requires intentional display of the National Flag in that manner for the offence to arise.
Background
The case arose from Crime No. 26 of 2022 registered at Kavarathi Police Station after police received a photograph showing Mohammed Kasim H.K. holding the National Flag with the saffron colour facing downward. The prosecution alleged an offence under Section 2 of the 1971 Act and subsequently filed a final report before the Judicial First Class Magistrate Court, Androth.
Kasim approached the High Court seeking quashing of the proceedings. His counsel argued that the photograph was taken while participating in the “Har Ghar Tiranga” programme and that the saffron-down position was accidental rather than deliberate. The defence also argued that the photograph had been shared in a private WhatsApp group.
The High Court examined Section 2 and its explanations. It noted that Explanation 4 specifically treats intentionally displaying the National Flag with the “saffron down” as an act of disrespect. The Court therefore focused on whether the prosecution material disclosed the necessary intention.
The Court also clarified that a private WhatsApp group cannot automatically be excluded from the expression “within public view”. Depending on its membership, even such a group may qualify as a place within public view under the Act.
The Court observed:
“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.”
Justice A. Badharudeen found that the prosecution material did not show that Kasim intentionally displayed the National Flag with the saffron colour downward to insult the Flag. The Court accepted that the photograph formed part of the “Har Ghar Tiranga” programme and treated the incorrect display as a mistake.
The High Court accordingly allowed the petition and quashed the proceedings arising from Crime No. 26 of 2022 and C.C. No. 18 of 2023 against the petitioner.
Case Details
Case Title: Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr.
Case Number: Crl.M.C. No. 7673 of 2024
Judge: Justice A. Badharudeen
Decision Date: September 26, 2026
