Asian judiciaries, prompted by the ICJ’s framework for judicial conduct, the Bangkok General Guidance, are increasingly combating courtroom misogyny and promoting fairness and inclusivity in legal systems.
A recent case decided by the Supreme Court of India referenced the Bangkok General Guidance for Judges on Applying a Gender Perspective (BGG), resulting in directives for judicial sensitization.
The verdict in Aparna Bhat & Ors. v the State of Madhya Pradesh & Anr released by the Indian Supreme Court in March 2021, originated from a bail condition imposed by the Madhya Pradesh High Court in a sexual assault case. The condition bizarrely aimed to “transform a molester into a brother,” setting a disturbing precedent for Indian trial courts.
On 20 April 2020, Vikram Khatti, entered the house of Sarda Bai, “held her hand and attempted to sexually harass her.” A criminal case was registered before the police and a charge sheet was subsequently filed. In the interim, the accused Vikram filed an application seeking pre-arrest bail. The Madhya Pradesh High Court in granting the bail to the accused, imposed the following condition:
(i) “The applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant -Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant – Vishal for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.”
Subsequently, Aparna Bhat and several other public interest attorneys filed an appeal before the Supreme Court of India against the Madhya Pradesh High Court’s bail decision. Their plea was clear—a call for clear directives against the trivialization of sexual assault cases.
In its verdict, the Indian Supreme Court directed that gender sensitivity be paramount in handling cases of sexual violence. The Court emphasized the importance of judges exhibiting care in their language and approach, recognizing that any instance of insensitivity tarnishes the credibility of the entire judicial system. The Supreme Court provided guidelines, including prohibiting bail conditions that mandate contact between the accused and the victim, with a focus on protecting the female complainant from further harassment. Courts were urged to refrain from reflecting stereotypical notions about women and to avoid suggesting compromises or mediation between the accused and the survivor. Furthermore, judges were cautioned against expressing stereotypical opinions during proceedings, emphasizing the importance of preserving the confidence of women survivors in the impartiality of the court.
The Supreme Court of India further issued directives aimed at enhancing gender sensitization. The court mandated the inclusion of a module on gender sensitization in the foundational training of every judge, with a focus on imparting techniques to handle cases of sexual assault with increased sensitivity and eliminating entrenched social biases, particularly misogyny. The National Judicial Academy was also tasked with swiftly crafting modules for the training of judges and continuing education programs, collaborating with sociologists and experts in psychology and gender studies. Additionally, Public Prosecutors and Standing Counsels were mandated to undergo mandatory training in this regard. The Bar Council of India was instructed to consult subject experts to incorporate topics on sexual offenses and gender sensitization into LL.B program syllabi, including them in all India Bar Examination. The Supreme Court expressed gratitude for valuable suggestions from the Attorney General and acknowledged submissions from appellant(s) and intervenor(s) before issuing these directives.
At the heart of the Attorney General’s recommendations to the Supreme Court is the Bangkok General Guidance for Judges on Applying a Gender Perspective (BGG).
What is the BGG?
The BGG, a set of recommendations developed by Southeast Asian judges in a program organised by the International Commission of Jurists (ICJ) in 2016 and updated by South Asian judges in 2022, sets a framework for judges in applying a gender perspective in the administration of justice.
“This landmark decision holds immense significance as it offers clear guidelines for Indian judges in handling sexual violence cases,” stated Caleen Chanyungco- Obias, ICJ National Legal Consultant for the Philippines. “The Attorney General extensively referenced the Bangkok General Guidance in his arguments before the Supreme Court, a notable success for the ICJ,” she continued. “Given that India’s judiciary is perhaps the largest in the South Asian region, decisions like this one have the potential to set a precedent for other countries in the region, and perhaps the world, to follow,” Chanyungco-Obias emphasized.
The BGG serves as a guiding document aimed at assisting judges in adjudicating cases and evaluating evidence without resorting to harmful gender stereotypes against women.
“The BGG ensures that judicial decisions and court proceedings are grounded on the principles of gender equality and non-discrimination guaranteed under international human rights law and standards. The Guidance also provides recommendations for institutional policies that courts may adopt to ensure gender mainstreaming within their judicial systems,” Chanyungco – Obias added.
Under its Women’s Access to Justice project, funded by the Swedish International Development Cooperation Agency (SIDA), the ICJ has spearheaded the establishment of gender-responsive courtrooms throughout the South and Southeast Asia region by promoting the adoption of the BGG’s principles among judges and other justice actors.
“There are numerous countries where the ICJ has made significant strides – from Indonesia to the Philippines, Sri Lanka to the Maldives, we have accomplished a great deal. Our most recent endeavor in Nepal further underscores our commitment to advancing justice and human rights globally,” Chanyungco – Obias said.
Recently, in Nepal, over 100 high court and district court judges, along with judicial officials and lawyers, attended a series of dialogues and workshops on the BGG organized by the ICJ. These workshops have played a significant role in sensitizing judicial actors to their pivotal role in avoiding harmful gender stereotypes and discriminatory attitudes towards women. As a result, the participants have demonstrated heightened awareness of gender perspectives when handling cases involving women, with Nepalese judges committing to making courtrooms and court proceedings more gender-responsive and gender-respectful.
Laxmi Pokharel, ICJ National Legal Adviser for Nepal, emphasized that these initiatives aim to improve women’s access to justice.
“The Supreme Court of Nepal has incorporated some major elements of the BGG into their midterm review of the strategic planning of the judiciary,” Pokharel added.
“We had a couple of discussions with the Supreme Court Justices, and they mentioned that they are discussing how they can integrate the core content of the BGG into their court regulations and other work of the judiciary,” Pohkarel said. Furthermore, the National Judicial Academy (NJA) Nepal has also added some elements of the BGG into their training curricula for judges and judicial officials.
Gesturing at a larger Asian story
Justice Sapana Pradhan Malla of the Supreme Court of Nepal sees the BGG as “an evolving document” with the capacity “to update, improve” and “contextualize”. She emphasizes persistent disparities and disadvantages faced by women in South Asia, particularly in societies where women are illiterate and economically disadvantaged.
“I think the major challenge across the region is that discrimination and violence against women and girls are justified in the name of purported traditional, cultural and religious beliefs,” she said.
Amy Avellano, a second-level trial judge in the Philippines, notes that judges, akin to parents, often lack specific training in becoming gender-sensitive, child-sensitive, or trauma-informed when they assume their roles. “Their approach is often shaped by their personal experiences in law school, primary school, or college, as well as their upbringing. The BGG acts as a compass, steering judges toward greater gender sensitivity. Thanks to the BGG, the situation is also improving in Southeast and South Asia,” she said.
“Indonesia is doing a remarkable step towards providing an enabling environment [for women],” said Avellano. “It’s Supreme Court adopted [the BGG] and instructed everyone within the judicial hierarchy to implement the Bangkok General Guidance,” she added.
Despite the Philippines not formally adopting the BGG into the judicial system, concrete steps have been taken, such as the Supreme Court’s adoption of the Guidelines in the Use of Gender-Fair Language in the Judiciary and Gender-Fair Courtroom Etiquette in February 2022, influenced by the BGG, she said.
“The judges that I know are utilizing the guidelines. They call out lawyers when they are gender-insensitive,” she said.
Avellano explained that this helps ensure that the rights of both the victims and the accused are respected and protected during court proceedings, fostering an environment where women and witnesses feel safe during examination or cross-examination, free from fear of being badgered or intimidated.
Avellano observes that even Court of Appeals justices have corrected themselves, acknowledging instances of gender insensitivity and rectifying them, showcasing heightened awareness due to the Philippines’ Supreme Court directives.
“So people are very conscious now,” noted the judge.