Now let us return to the person with whom we began. Let us call him Y. He is the person standing at that same doorstep, holding that same warrant, with the same allegation and the same legal presumption of innocence. But Y does not begin where X begins.
For Y, the first obstacle is not necessarily the allegation itself. It is understanding what the warrant means. How does he decode a document written in a language and legal vocabulary that he may barely understand? And even before these questions are answered, another set of thoughts begins to occupy his mind: how will I manage the expense? How will I travel hundreds of kilometres to that court? What will happen to my job while I am travelling and attending court? What if my employer removes me for taking leave? More importantly, how will I pay the lawyer?
At this stage, one may notice that Y is not yet asking the question that the criminal justice system expects an accused person to ask: How will I prove my innocence? That question has not even become his immediate concern. Y’s mind is occupied by a more elementary calculation: Can I afford to participate in the process through which I am expected to establish my innocence? For Y, the ability to invoke the presumption of innocence is in itself a conscious economic decision.
This is the crucial difference which shows that the presumption of innocence as a concept may act universally, but the capacity to defend innocence is not. The law may place X and Y under the same presumption of innocence; it may give them the same procedural rights and subject them to the same legal standards. However, the economic circumstances in which those rights have to be exercised can be radically different.
Y, in this sense, is not a rhetorical convenience invented to make a point. He is, statistically, closer to the reality of India’s undertrial population than X will ever be. The institutional support meant to bridge this gap is, on paper, robust. Article 39-A of the Constitution and the Legal Services Authorities Act, 1987 guarantee free legal aid to anyone unable to afford a lawyer, operationalised nationally through the National Legal Services Authority. In practice, the bridge barely holds.
A 2018 study found that India has roughly one legal aid lawyer for every 18,609 people. Several states manage barely one legal aid lawyer for every 10,000 to 30,000 eligible citizens. Perhaps more revealing still is how few people even reach that lawyer. A nationwide study of admissions between 2016 and 2019 found that only about 7.91 per cent of undertrials entitled to free legal aid actually accessed it. Not because the remaining 90+ per cent could afford private counsel, but because awareness, access and functioning legal infrastructure are themselves scarce resources, distributed as unevenly as everything else in this account.