Displaying National Flag 'Saffron Down' Accidentally, Without Mens Rea, Is No Offence: Kerala HC

The Kerala High Court has held that accidentally displaying the Indian National Flag with the saffron colour facing downward, without any intention or mens rea to insult the National Flag, would not constitute an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.

Justice A. Badharudeen made the observation while quashing criminal proceedings against a Lakshadweep man who was accused of insulting the National Flag after a photograph showed him holding the Flag with the saffron colour facing downward.

The Court, however, made it clear that intentionally displaying the National Flag with the saffron colour down with a view to insult the National Flag and the Constitution of India is an offence punishable under Section 2 of the Act.

FIR registered after photograph showing ‘saffron down’ National Flag

The case concerned Mohammed Kasim H.K., against whom a suo motu was registered on August 14, 2022, after Police received information through a WhatsApp group called “M.G.College”. A person named Ameen had forwarded a photograph showing Kasim holding the Indian National Flag with the saffron colour facing downward.

The police subsequently recorded the statements of eight witnesses, who stated that they had seen the photograph. A final report was thereafter filed alleging commission of an offence under Section 2 of the Act.

Kasim approached the High Court under Section 482 CrPC seeking quashing of the proceedings.

His counsel submitted that Kasim and his wife had participated in the “Har Ghar Tiranga” programme and had taken the photograph at their residence in Kozhikode. The photograph was subsequently forwarded in a private WhatsApp group consisting of BJP members from Lakshadweep.

It was argued that the saffron colour appeared downward inadvertently, and that there was no intention to insult or disrespect the National Flag.

What does Section 2 of the National Honor Act provide?

Section 2 of the Prevention of Insults to National Honour Act deals with "Insult to Indian National Flag and Constitution of India."

The provision covers acts committed in a public place or in any other place within public view, including burning, mutilating, defacing, defiling, disfiguring, destroying, trampling upon or otherwise showing disrespect to, or bringing into contempt, the Indian National Flag or the Constitution of India.

The offence is punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

The High Court noted that Explanation 4 to Section 2 defines what constitutes disrespect to the National Flag. Clause (l) specifically provides that "intentionally displaying the Indian National Flag with the 'saffron down" is an act of disrespect to the National Flag.

Private WhatsApp group can be 'place within public view'

Kasim had also argued that the photograph had been shared in a private WhatsApp group and, therefore, could not be considered to have been displayed in a public place or a place within public view.

The High Court did not accept this contention. Justice Badharudeen noted that while the Act defines “public place”, the expression “in any other place within public view” is not separately defined.

The Court drew a distinction between the two expressions and observed that a place within public view could include a private place where the presence of, or access by, the public to watch the proceedings is possible.

It consequently held: "Even a private WhatsApp group involving many persons/members would qualify a place within public view for the purpose of the Act, 1971."

Prosecution did not allege intentional display of flag with 'saffron down

The Court then examined whether the prosecution material disclosed the requisite intention. It noted that the prosecution's case, from the registration of the FIR through the filing of the final report, was that Kasim had "insulted the Indian National Flag showing the saffron colour facing downward."

However, the prosecution had no case that he intentionally displayed the National Flag with the saffron colour facing downward.

The Court observed that this was significant because clause (l) of Explanation 4 to Section 2 specifically refers to intentional display of the National Flag with “saffron down”.

The Court also noted that the photograph was displayed as part of the “Har Ghar Tiranga” programme, which was intended to honour the National Flag.

‘Non-intentional, accidental or mistaken acts’ do not attract offence

Justice Badharudeen held that where the National Flag is intentionally displayed with the saffron colour down “with a view to insult” the National Flag and the Constitution of India, the act would constitute an offence under Section 2.

At the same time, the Court clarified that “non-intentional, accidental or mistaken acts” without any intention or mens rea to insult the Indian National Flag and the Constitution of India would not attract the offence.

Applying this principle to the case, the Court found that Kasim “never intended to display the Indian National Flag with the saffron colour down” and that it was a mistake on his part.

Consequently, the Court held that the allegation of an offence under Section 2 of the Prevention of Insults to National Honour Act could not be found prima facie.

The High Court accordingly exercised its jurisdiction under Section 482 CrPC and quashed the proceedings against Kasim.

Case Title: Mohammed Kasim HK v Union Territory of Lakshadweep & anr