Accidentally displaying the Indian flag with saffron down is not an offence without intent to insult, Kerala High Court rules

The petitioner, the sole accused in C.C. No. 18 of 2023 before the Judicial First Class Magistrate Court, Androth, challenged proceedings arising from Crime No. 26 of 2022 registered by Kavaratti Police Station under Section 2 of the Prevention of Insults to National Honour Act, 1971 (“the 1971 Act”).

The FIR was registered suo motu after a photograph circulated through WhatsApp allegedly showed the petitioner holding the Indian National Flag with the saffron band facing downward.

The prosecution recorded statements from several witnesses who had viewed the photograph and thereafter filed a final report alleging that the petitioner had insulted the National Flag.

The petitioner contended that the photograph was taken as part of the “Har Ghar Tiranga” programme and forwarded to a private WhatsApp group, that the saffron-down depiction was accidental, and that the required intention to insult was absent.

Whether a private WhatsApp group can constitute a “place within public view” for the purposes of Section 2 of the Prevention of Insults to National Honour Act, 1971.

Whether intentionally displaying the Indian National Flag with the saffron band facing downward is necessary to attract the offence under Section 2 of the 1971 Act.

Whether the prosecution materials disclosed the requisite intention or mens rea on the petitioner’s part so as to justify continuation of the criminal proceedings.

The Court applied Section 2 of the Prevention of Insults to National Honour Act, 1971, which criminalises acts showing disrespect to or bringing the Indian National Flag into contempt in a public place or any other place within public view.

Explanation 3 defines “public place” as a place intended for, or accessible to, the public, while Explanation 4 specifies acts constituting disrespect; clause (l) includes intentionally displaying the National Flag with the “saffron down”.

The expression “place within public view” is wider than “public place” and may include a private place accessible to public observation; accordingly, a private WhatsApp group involving numerous members may qualify as a place within public view, following Binoy Balakrishnan v. State of Kerala, [2026 KHC 1507 : 2026 (1) KLT 291].

However, the statutory requirement of intentional display with the saffron down must be established; accidental, mistaken, or non-intentional conduct lacking mens rea to insult the National Flag does not attract Section 2.

The Court also considered Mammen Varghese v. State of Kerala, [2024 KHC OnLine 705], and V.K. Narayanan v. State of Maharashtra, Crl. Application No. 7 of 2026.

The inherent power under Section 482 Cr.P.C. may be exercised to quash proceedings where the prosecution materials do not prima facie disclose the alleged offence.

The Court rejected the petitioner’s contention that the private nature of the WhatsApp group, by itself, excluded the application of Section 2.

Since the group contained multiple members and the photograph was capable of being viewed by others, it could constitute a place within public view.

Nevertheless, the prosecution had consistently alleged only that the petitioner displayed the Flag with the saffron band downward; it did not allege or produce material showing that he did so intentionally with the object of insulting the National Flag.

The surrounding circumstances indicated that the photograph was taken in connection with the “Har Ghar Tiranga” programme, which was intended to honour the National Flag.

The Court therefore treated the saffron-down depiction as an accidental or mistaken act rather than an intentional act of disrespect.

Since intentional display was an essential statutory element under Explanation 4(l), the materials did not disclose a prima facie offence under Section 2.

As the prosecution materials did not establish such intention and indicated that the depiction was accidental and made in the context of honouring the Flag, no prima facie offence was disclosed.

The petition was accordingly allowed, and all further proceedings in Crime No. 26 of 2022 and C.C. No. 18 of 2023 against the petitioner were quashed under Section 482 Cr.P.C.