The Kerala High Court has quashed criminal proceedings against a man accused of insulting the Indian National Flag after a photograph showing him holding the flag with the saffron colour facing downward was circulated in a WhatsApp group.
Justice A. Badharudeen held that intentional display of the National Flag with the saffron colour facing downward constitutes an act of disrespect under Section 2 of the Prevention of Insults to National Honour Act, 1971. However, an accidental, non-intentional or mistaken display, without the requisite intention or mens rea to insult the National Flag, would not attract the penal provision.
The case arose from an FIR registered suo motu by the Kavaratti Police after a photograph of the accused holding the National Flag with the saffron colour facing downward was circulated through a WhatsApp group. The prosecution alleged an offence under Section 2 of the 1971 Act, and statements of several witnesses who had seen the photograph were recorded.
The accused contended that the photograph was taken as part of the ‘Har Ghar Tiranga’ programme at his residence and was subsequently shared in a private WhatsApp group. He argued that the saffron colour appearing downward was inadvertent and that there was no intention to insult the National Flag. He also contended that a private WhatsApp group could not constitute a public place or a place within public view for the purposes of Section 2.
On the question of public view, the Court rejected the argument that the private nature of the WhatsApp group, by itself, took the alleged act outside the scope of the Act. It observed that while a ‘public place’ is specifically defined under Explanation 3 to Section 2, a ‘place within public view’ is distinct and may include a private place where the presence of, or access by, the public to watch the proceedings is possible. The Court held that even a private WhatsApp group involving many members could qualify as a place within public view.
However, the Court found that the prosecution materials did not allege that the accused had intentionally displayed the National Flag with the saffron colour downward. On the contrary, the photograph had been taken in connection with the ‘Har Ghar Tiranga’ programme, which was intended to honour the National Flag.
The Court accordingly concluded that the display was a mistake and that the requisite intention to insult the National Flag was absent. It held that the offence under Section 2 was therefore not made out even prima facie and exercised its powers under Section 482 CrPC to quash the proceedings.
The Court thus drew a distinction between intentional disrespect to the National Flag, which is punishable under Section 2, and an accidental or mistaken display without mens rea, which does not attract criminal liability.
