Kerala High Court quashes case against man who mistakenly held national flag upside down

The Kerala High Court on Saturday held that accidentally displaying the Indian national flag with its saffron colour facing downward would not amount to an offence if there was no intention to insult the flag. [Mohammed Kasim HK V Union Territory of Lakshadweep & anr]

Justice A Badharudeen said that an offence under Section 2 (Insult to Indian National Flag and Constitution of India) of the Prevention of Insults to National Honour Act, 1971 (Act), would be attracted only when a person deliberately displays the national flag saffron-side down, with an intent to insult the flag.

"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 added.

It made the observation while quashing a criminal case against one Mohammed Kasim HK who was booked after a photograph showed him holding the national flag with the saffron colour facing downward.

The case against Kasim was registered suo motu by the Kavaratti Police in August 2022 after a police officer received the photograph of him holding the national flag upside down during the Har Ghar Tiranga programme.

After investigation, the police filed a final report accusing him of an offence under Section 2 of the Act which punishes anyone who, in a public place or within public view, burns, mutilates, defaces, destroys, tramples upon or otherwise shows disrespect to the national flag or the Constitution.

Such an offence can attract imprisonment of upto three years, a fine or both and Explanation 4(l) to the provision specifically treats intentionally displaying the Indian National Flag with the 'saffron' down, as an act of disrespect.

Kasim approached the Court seeking to quash the proceedings initiated against him and the subsequent case pending before the Judicial First Class Magistrate Court at Lakshadweep.

He told the High Court that the photograph was taken at his Kozhikode residence when he and his wife participated in the 'Har Ghar Tiranga' programme.

The photograph was shared on a private WhatsApp group comprising BJP members from Lakshadweep and subsequently came to the notice of the police, following which the case against him was registered.

He said that the flag was mistakenly held upside down and that there was no intention to disrespect it.

Kaism also argued that sharing the photograph in a private WhatsApp group would not attract the offence under Section 2 which requires insult to the national flag in a public place or any other place within public view.

The Court rejected this latter argument and held that even though a WhatsApp group may be private, it consists of several members and can fall within the expression 'any other place within public view' for the purpose of Section 2.

However, it found merit in Kasim's argument regarding the absence of intention and noted that even the prosecution material had not alleged that the flag was insulted intentionally.

The Court also took note of the fact that the photograph was taken as part of the 'Har Ghar Tiranga' programme, which was meant to honour the flag.

Since no offence was made out against Kasim under Section 2, the Court quashed the FIR and the criminal proceedings initiated against him.

Advocates Ajit G Anjarlekar, GP Shinod, Govind Padmanaabhan, Atul Mathews and Gayathri SB appeared for Kasim.

Standing counsel RV Sreejith represented the Union Territory of Lakshadweep.

[Read Order]