[This Article is authored by Khushi Jain, Law Student at Hidayatullah National Law University, Raipur]

Introduction

A recent terror attack in Jammu and Kashmir’s Pahalgam Valley has raised many questions that need to be addressed, but have long been ignored. The Pahalgam attack claimed the lives of innocent tourists, but one 10-year-old boy named Naksh Kalathiya survived, whose entire world fell apart after witnessing his father’s death. The agony of the moment was already permanently imprinted in the boy’s memory, which was made worse by the repeated questioning by the media personnel. He was compelled to recount the terrifying incident again and again by various media outlets, including News 18, NDTV, and The Times of India. His videos went viral the internet, including YouTube, Instagram, Facebook.. Instead of being given the space to grieve and recover, the little boy was visibly treated as a commodity, exploited by different media channels to sensationalise the tragic event and boost their Television Rating Points (“TRPs”).

There have been many incidents, such as the Arushi Talwar case (2008) and the Sushant Singh Rajput Case (2020), which turned the parties involved into clickbait for higher TRPs. The interlinked phenomena of media trials, secondary victimisation and commodification of victims form a vicious cycle in TRP-driven journalism. The media trials, where news outlets bypass judicial processes to shape public opinion, often pre-emptively damage reputations before any judicial finding. This, in turn, intensifies secondary victimisation by compelling victims to relive their trauma for public spectacle. At the core of these violations lies commodification, i.e., treating victims and accused as products, packaged for maximum viewership and profit. The media, often hailed as the “fourth pillar of democracy”, has, on many occasions, crossed ethical boundaries, re-traumatising the victims and misusing its power for sensationalism.

This article delves into the TRP-driven exploitation by the media channels and their impact on the victims. It further discusses the existing legal framework in India aimed at preventing such exploitation and identifying loopholes within it. Additionally, the article also explores the potential areas for reforms and offers suggestions by comparing it with the legal framework of other countries.

Sensationalism Over Sensitivity: Victims As Content

In this competitive realm, driven prominently by profit motives, the relentless pursuit of TRPs has led to the commercialisation of victim suffering. Rather than acting as a platform for the public’s voice or a tool for justice, media outlets often prioritise sensational content to maximise viewership and revenue.  A notable example is the Nirbhaya Gang Rape & Murder case (2012), where, despite the media playing a significant role in mobilising opinion, the media personnel provided excessive exposure to the victim’s family. The media often transforms personal trauma into a dramatic spectacle, turning victims into mere characters in a TRP-driven narrative.

This trend was also observed in the Sushant Singh Rajput case (2020), in which media houses went beyond ethical journalism and breached reasonable restrictions under Article 19(2) by airing private chats and speculating about his mental condition. They not only breached his privacy but also distorted the lens through which the public viewed the case. Additionally, Rhea Chakraborty was repeatedly interviewed without her consent for the sake of TRP. Ironically, she was later cleared of all the allegations, but the media had already tarnished her image irretrievably.

This signals to another major concern of “media trials”, where the press assumes the role of judge, shaping public opinion before any legal verdict. In the Aarushi Talwar murder case (2008), without any legal verdict, the media declared Aarushi’s parents guilty based on conjecture. This directly violated the principle of “equality before the law” under Article 14 and “right to a fair trial” enshrined under Article 21 of the Indian Constitution. Although the Central Bureau of Investigation (“CBI”) later acquitted them, the damage to their image was irreversible. This reflects a clear case of secondary victimisation, where victims suffer additional trauma due to insensitive and speculative media practices.

A similar scenario unfolded in the case of Pradyuman Thakur (2017), where a bus conductor was falsely accused of the murder of a 7-year-old. Due to relentless media trials, he lost his job and faced social exclusion. Even though he was found innocent by the court, he never got his previous life again. Such incidents allude to the direct violation of the “presumption of innocence” enshrined in Article 21 of the Indian Constitution and illustrate how media sensationalism can destroy lives for the sake of money.   

Between Rights And Ratings: India’s Legal Framework And Its Shortcomings

The Supreme Court in the case of Nipun Saxena v. Union of India underlined the importance of the right to privacy of the victim, stating that it must override commercial interests. India’s legal framework includes several provisions in order to combat this issue. Section 228A of the Indian Penal Code, 1860, now replaced by Section 72 of Bhartiya Nyaya Sanhita (BNS), 2023, prohibits from disclosure of the identity of a rape survivor. This position was affirmed by the Hon’ble Supreme Court in State of Karnataka v. Puttaraja that Section 228A serves twin purposes: preventing secondary victimization and encouraging victims to raise their concerns without the fear of social stigma.

Furthermore, minors are being protected under the Protection of Children from Sexual Offences (“POCSO”) Act, 2012. Section 23 of the act mandates that the matter should be handled with confidentiality and identity of minor rape victims should not be disclosed. The Calcutta High Court in Bijoy @ Guddu Das v. The State of West Bengal reiterated that any person, including a police officer, shall be prosecuted if he/ she commits such a breach.

However, the enforcement is lax. There have been numerous instances where the media outlets have disclosed the identity of the rape victims. For instance, a minor’s identity was disclosed in the case of the Kathua Gang Rape case (2018), violating the POCSO Act, 2012. Moreover, no appropriate action was taken against them.

Additionally, the Press Council of India (“PCI”) and the News Broadcasting Standards Authority (“NBSA”) have also issued guidelines for the media houses that are to be followed for the protection of victims’ rights. But the guidelines by these regulatory authorities are advisory in nature and not legally binding. As a result, any violations of these regulations can’t be penalized, allowing media sensationalist and exploitative reporting practices to flourish unchecked.

Furthermore, Section 2(c) of the Contempt of Court Act, 1971 restricts the reporting on sub-judice matters which prejudice, interfere, or tend to lower the authority of any court. The Supreme Court in Sahara India Real Estate v. SEBI clarified that media coverage crossing the line from fair reporting to prejudicial coverage constitutes contempt, and recognized the court’s authority to issue publicity postponement orders to prevent such prejudice. However, such safeguards are rarely invoked against media outlets.

Beyond Borders: International Standards In Victim Privacy

The United Kingdom’s Contempt of Court Act, 1981, unlike India, provides a robust legal mechanism to prevent media interference in the delivery of justice. It imposes restrictions on publishing material during ongoing trials that could prejudice jury decisions. Additionally, the UK’s Independent Press Standards Organisation (“IPSO”) mandates the confidentiality of the victims of sexual crimes. It explicitly prohibits interviews that may be perceived as harassing or distressing to victims. Compliance with these regulations is not advisory; it is mandatory, and any violation would result in fines and public apologies.

By requiring express agreement before publishing personal data and levying steep fines for violations, the European Union’s General Data Protection Regulation (“GDPR”) sets a high global benchmark. Violation of this regulation results in severe financial penalties. While India’s Digital Personal Data Protection Act, 2023, strives to but has not yet fully achieved that benchmark. The consent of the victim is still required to be inculcated.

Similarly, Australia presents a strong model for victim-centric media regulation. It mandated that the media must consult with victims and take their consent before publishing any sensitive details and must avoid sensational language or imagery. An e-Safety Commissioner is further empowered by the Online Safety Act of 2021 to regulate information shared on the internet, particularly in cases involving online harassment, misinformation, or violation of privacy.

From Spectacle To Sensitivity: The Way Forward

As discussed, India faces a lot of challenges in protecting the privacy and dignity of the victims. Despite having several legal provisions, the TRP-driven exploitation has flourished due to the weak enforcement and other loopholes. In contrast, other aforementioned countries have stricter implementations of well-planned policies that prioritize victim-centric reporting. Taking inspiration from these global models and correcting native deficiencies, the following reforms are suggested to improve the contemporary situation in India.

To address the ongoing issue of TRP-driven exploitation and safeguard victim dignity, the first step should be strengthening India’s existing regulatory bodies and legal provisions. The PCI and the NBSA should be given more powers. Along with the warnings, they should have the authority to impose binding penalties, issue take-down notices, and revoke licenses of media houses for repeated violations. Implementation of laws such as Section 228A of the IPC, 1860, Section 23 of the POCSO Act, 2012, and Section 2(c) of the Contempt of Court Act, 1971 is not strong enough. Stringent enforcement of these provisions would result in the improvement of the prevailing situations.

Equally essential is the introduction of mandatory ethical journalism training in journalism and mass communication curricula. Journalists should be educated in trauma-informed reporting to understand the psychological implications of their work on victims and their families. Also, collaboration with international initiatives such as Dart Center for Journalism and Trauma, Canada, can be done to achieve more effective and innovative outcomes.

Finally, the role of consent must be foregrounded in victim-centric reporting. Influence should be made from the model of the EU’s GDPR to mandate the privacy of victims. Special emphasis should be placed on obtaining the explicit, written consent of victims. The regulations should impose strict penalties on the information and content that is being published without the written consent of the victim. These are some crucial reforms that would perfectly address the existing gaps in India’s legal framework related to media and its TRP-driven exploitation.