The Kerala High Court has quashed a case under the Prevention of Insults to National Honour Act, 1971 against a man who shared a photograph of himself holding the National Flag with the saffron colour facing down, holding that intention is essential to the offence and that a mistake is not an offence, while also ruling that a private WhatsApp group with many members is a place within public view.
Kochi: The Kerala High Court has quashed criminal proceedings against a 54-year-old man from Lakshadweep who was prosecuted under Section 2 of the Prevention of Insults to National Honour Act, 1971 for a photograph in which he held the Indian National Flag with the saffron colour facing downward, holding that the prosecution had no case of intentional insult and that the display was a mistake [Mohammed Kasim H.K. v. Union Territory of Lakshadweep and Another].
Justice A. Badharudeen passed the order on September 26, 2026 in Crl.M.C. No. 7673 of 2024, filed under Section 482 of the CrPC to quash Crime No. 26 of 2022 of the Kavaratti Police Station and C.C. No. 18 of 2023 on the file of the Judicial First Class Magistrate Court, Androth. On the other issue raised, the Court held that a private WhatsApp group with many members qualifies as a place within public view under the Act.
The case
The FIR was registered on August 14, 2022 by the Inspector of Police, Kavaratti, on his own, after receiving through a WhatsApp group titled “M.G. College” a photograph, forwarded by another member, showing the petitioner holding the National Flag with the saffron colour facing down. The offence alleged was under Section 2 of the 1971 Act. The police recorded the statements of witnesses, who said they had also seen the photograph, and filed a final report.
Section 2 punishes whoever, in any public place or any other place within public view, burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt the National Flag or the Constitution, by words or acts, with imprisonment up to three years, or fine, or both.
What the parties argued
The petitioner’s counsel, Advocate Ajit G. Anjarlekar and others, argued that the petitioner had taken part in the “Har Ghar Tiranga” programme to honour the flag, and had taken the photograph with his wife at his home in Kozhikode and sent it to a private WhatsApp group. The flag was inadvertently shown with saffron down, which was neither intentional nor deliberate. He argued that intention is essential to the offence, that a private WhatsApp group is neither a public place nor a place within public view, and relied on the Kerala High Court’s decision in Mammen Varghese v. State of Kerala and the Bombay High Court’s decision in V.K. Narayanan v. State of Maharashtra.
Standing Counsel R.V. Sreejith, for the Lakshadweep Administration, argued that a group being private does not by itself take the act outside the Act, and that although the FIR and final report do not use the word intention, insult to the flag is specifically alleged, so the necessary intention is implied.
Private WhatsApp group is a place within public view
The Court noted that Explanation 3 defines a public place as any place intended for use by, or accessible to, the public, including any public conveyance, but that the Act does not define a place within public view. It said there is a subtle difference between the two expressions. A place within public view can be any other place, including a private place, where the public can be present or have access to watch the proceedings. It therefore held that even a private WhatsApp group involving many members qualifies as a place within public view for the purposes of the Act, following its own earlier decision in Binoy Balakrishnan v. State of Kerala.
Intention is essential
On intention, the Court noted that Explanation 4 lists acts of disrespect to the flag, and that clause (l) provides that intentionally displaying the flag with the saffron down is such an act. It observed that a photograph of the flag is also treated as the flag under Explanation 2. In Mammen Varghese the Court had quashed a case where the saffron portion was outlined in black beside a picture of the Father of the Nation, and in V.K. Narayanan the Bombay High Court quashed a case against a mere participant in a flag-hoisting ceremony where the material did not show that he hoisted or destroyed the flag.
Applying this, the Court noted that the witnesses said they felt insulted on seeing the photograph, and that the prosecution’s allegation from the FIR onwards was only that the petitioner had insulted the flag by showing the saffron down, not that he did so intentionally. It did not accept that intention could simply be implied. It observed that the petitioner had displayed the photograph as part of the “Har Ghar Tiranga” programme, which is meant to honour the flag.
The Court held that intentionally displaying the flag with the saffron down, with a view to insult the flag and the Constitution, is an offence under Section 2, but that non-intentional, accidental or mistaken acts, without any intention or mens rea to insult, do not attract the offence. It concluded from the prosecution material that the petitioner never intended to display the flag saffron down, that this was a mistake on his part, and that no offence was prima facie made out.
The order
The petition was allowed. All further proceedings in Crime No. 26/2022 of the Kavaratti Police Station and in C.C. No. 18/2023 before the Judicial First Class Magistrate Court, Androth, against the petitioner were quashed.
Why it matters
The order makes two points under the 1971 Act. Sharing an image in a private group of many members can be an act in a place within public view, so privacy of the group is no defence by itself. But the offence of showing the flag saffron down needs intention, and a prosecution that alleges only insult, without material showing intent, cannot proceed against a person whose act was a mistake.
The Court decided the question on the prosecution’s own material at the quashing stage. Its holding on the WhatsApp group means that such posts can fall within the Act where intention to insult the flag is shown.
Case Title: Mohammed Kasim H.K. v. Union Territory of Lakshadweep and Another [Crl.M.C. No. 7673 of 2024]
Bench: Justice A. Badharudeen, Kerala High Court
Date of Order: September 26, 2026
Appearances: Advocates Ajit G. Anjarlekar, G.P. Shinod, Govind Padmanaabhan, Atul Mathews and Gayathri S.B. appeared for the petitioner, and Standing Counsel R.V. Sreejith appeared for the Union Territory of Lakshadweep and the Station House Officer, Kavaratti.