Introduction
Positive discrimination, often referred to as affirmative action or positive action, is a policy or practice aimed at addressing historical inequalities and promoting diversity by giving preferential treatment to members of marginalized or underrepresented groups. It is an approach that seeks to counteract the effects of systemic discrimination, bias, and exclusion that certain groups have faced throughout history. The underlying goal of positive discrimination is to create a more equitable society where everyone has an equal opportunity to succeed, regardless of their background.
Positive discrimination is typically implemented in various areas, including education, employment, and public services, to provide a level playing field for individuals who have been historically disadvantaged due to their race, gender, ethnicity, disability, or other characteristics.

The Age Discrimination Act 2004 allows for “positive measures to be taken on the basis of age”. The Act says that it  is “not against the law to provide a genuine benefit to people of a particular age group or to do something that helps meet an identified need for people of a certain age group or is intended to reduce a disadvantage experienced by persons of a particular age.¹
Example: Seats, Discounts given to passengers with a Seniors Card in public vehicles.

Definitions
Australian Human Right Commission- The term ‘positive discrimination’ is sometimes used to refer to ‘positive measures’ or ‘special measures. Special measures aim to foster greater equality by supporting groups of people who face, or have faced, entrenched discrimination so they can have similar access to opportunities as others in the community.

John Rawls, a prominent political philosopher defines positive discrimination as a policy that seeks to rectify social and economic inequalities by providing additional opportunities and benefits to those who have been historically disadvantaged. Rawls' theory of justice emphasizes the principle of equal basic liberties and the "difference principle," which allows inequalities as long as they benefit the least advantaged in society.
Positive discrimination aligns with this principle by addressing the needs of marginalized groups.

Patricia Williams, a legal scholar and critical race theorist, defines positive discrimination as a strategy that acknowledges the systemic racism and discrimination faced by minority groups and seeks to create more inclusive and equitable institutions. Williams might emphasize the importance of recognizing the unique experiences of different marginalized groups and the need to challenge deeply ingrained biases and structures of power.

Difference between Equality and Equity

Why do we need positive discrimination with an aim to benefit certain groups of people only?

To understand why positive discrimination is required, we need to educate ourselves about equity, equality, and how they differ from each other. Equality means each individual or group of people is given the same resources or opportunities, which considers an ideal situation where all people are equal. Equality refers to the state of being equal in terms of rights, opportunities, treatment, and status. It's a fundamental concept in the realms of social justice, human rights, and fairness. Equality suggests that all individuals should have the same basic rights and chances, regardless of their background, characteristics, or circumstances.

Addressing the imbalance of systematically marginalized groups is only possible through equity. Equity recognizes that each person has different circumstances and allocates the necessary resources and opportunities needed to reach an equal. While equality aims to treat everyone the same, equity considers the fact that individuals may start from different positions due to historical or systemic disadvantages. Equity seeks to provide fair treatment by considering these differences and adjusting resources and opportunities accordingly. For a better understanding of these terms, let’s look at two examples:
A community meeting, where all members of the community are invited, about a local environmental health co ncern is held in English although 30% of the residents do not speak English.
At another community meeting, the community leaders hire translators to attend the meeting or offer an additional meeting held in another language.
The first case treats everyone the same (equally), which does not guarantee a positive outcome for all the members. The second instance recognizes the individual needs of the members and takes proactive steps to meet those needs equitably.

Positive Discrimination in Nepal
The concept of positive discrimination had started emerging after the Interim Constitution, promulgated after the second people’s movement in 2006, laid out reservation provisions.
The constitution of Nepal states that the State shall not discriminate among citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideological conviction or on similar other grounds.
Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or development of the citizens including the socially or culturally backward women, Dalit, indigenous people, indigenous nationalities (Aadibasi Janajati), Madhesi, Tharu, Muslim, oppressed class, Pichhada class, minorities, the marginalized, farmers, labours, youths, children, senior citizens, gender and sexual minorities, persons with disabilities, pregnant persons, incapacitated or helpless, backward region and indigent Khas Arya. ²
Currently, there is 45 percent reservation in government jobs and government scholarships for the people from different cluster groups, mainly formed based on castes. A study by Samata Foundation, a non-profit that advocates for social justice, inclusiveness and the rights of marginalized people, shows among 88,579 people in civil service, hardly 2.22 percent, or 1,971, are from the Dalit community. Their share in Nepal Police stands at 9.45 percent, 8.14 percent in the Nepal Army and just 1 percent in the judiciary. While 18.7 percent of the country’s population is below the poverty line, it is 42 percent for the community. Their life expectancy is 58 years while the country’s life expectancy as a whole stand at 69 years. Over 15.32 percent of Dalit people are landless. The problem is even more serious when it comes to Dalits from the Terai where around 44 percent of people are landless.³
To help visualize the status of literacy in Nepal, data from UNESCO shows that among the ten least educated districts of Nepal, 7 districts lie in Madhes. These districts have literacy rates as follows: Rautahat 41.7%, Sarlahi 46.3%, Mahotari 46.4%, Siraha 50.2%, Dhanusa 50.4%, Bara 52% and Saptari 54.4%.⁴ With a few exceptions, most of these vulnerable people are unable to compete with highly literate people from other districts such as Kathmandu which has the highest literacy rate of 86.3%.

Challenges
Of the total applicants in the fiscal year 2019-20 for jobs in the federal government, as many as 28 percent were received from the hill Brahmin community, followed by Chhetris (17.94 percent) and Tharus (6.61 percent). According to the Public Service Commission, 45 percent of the jobs went to Brahmins, followed by Chhetris (12.83 percent), while 4.61 percent went to Tharus. ⁵ If we analyse the Commission’s data for the years following the promulgation of the constitution, we will find that the composition of the civil service hasn’t changed as envisioned by the Civil Service Act 2007, and recruitment from the hill Brahmin community continues to remain disproportionately high compared to their population.

A division bench of Justices Bishowambhar Prasad Shrestha and Ananda Mohan Bhattarai said reservation should be for one time only and should not be used by a person repeatedly, adding that children from the communities listed for reservation in the constitution, who are in high-level government and other positions, too aren’t eligible for the facility. The ruling also goes on to add that the reservation provisions need to be revisited for affirmative action on the basis of need rather than caste. It has also noted that some well-to-do groups in the target communities have been taking advantage of the provision, and that class and caste shouldn’t be taken as criteria for reservation. ⁶

Other Challenges

Addressing these challenges requires a comprehensive and collaborative approach involving government, civil society, international organizations, and the communities themselves. It involves not only policy formulation but also awareness-building, capacity development, and ongoing evaluation.

Controversies
One of the most significant controversies is the perception that positive discrimination might lead to reverse  discrimination, where members of historically privileged groups feel unfairly treated due to preferences given to marginalized groups.
Critics argue that positive discrimination undermines the principles of meritocracy, where individuals are rewarded based on their skills and abilities rather than their identity. They contend that hiring or admitting individuals based on their identity rather than qualifications could lead to inefficiency or unqualified candidates in certain positions.
The duration of positive discrimination policies is often debated. Critics argue that these policies might continue indefinitely, perpetuating preferential treatment even when they are no longer needed
It's important to note that the controversies surrounding positive discrimination are multifaceted and can vary based on cultural, societal, and historical contexts. Supporters of positive discrimination often counter these arguments by emphasizing the importance of addressing systemic inequalities and historical disadvantages in order to achieve true equality and inclusivity.

Global Perspective
The right to equality guaranteed under Article 14 of the Constitution provides that every person should be subjected to equality and equal protection of the law. ⁷ In order to bring the unequal to equals, the Constitution lays down the concept of positive discrimination so that Article 14 is not contravened with. While the Indian Constitution recognises that the unequal in the society can be uplifted to the same level as the equals by means of providing them with special status in form of reservation. his right is similar to what Dicey propounded in England in the name of rule of law.
In the case of State of Bombay v. F.N. Balsara, the Supreme Court was of the opinion that the distinction (Grouped together and excluded one) which is carried out must not be illusionary or imaginary but original and substantial by nature.

It was in the case of State of Kerala v. N.M. Thomas, that the apex court was of the opinion that equity is said to be violated if it is made on the basis of reasonability. The entire object behind equality is destroyed if it is not made on the grounds of reasonability. Therefore, reasonable classification should be provided, only then can equality be achieved.

The 14th amendment of the American Constitution is given a view that appears to be similar to the guarantee provided by Article 14 in the form of equal protection of the law. This part of the right to equality can be interpreted as being subject to equal law which applies to individuals who are in a similar circumstance.

Positive discrimination is illegal in the United Kingdom. While positive discrimination aims to recruit more and more employees, who are of the minority groups, positive action aims to bring in a balance in the workforce. It says that the entity should decide as to whom to take and whom not to so that a balance can be created and minorities and majorities are equally represented. The Equality Act, 2010 states that positive action can be adopted if there is a reasonable thought that women or other unrepresented people are suffering due to discrimination on several spheres, then positive action can be taken to bring a change in the workforce of the companies. The same can be carried out through the means of circumstantial evidence, statistics of past years, qualitative analysis etc.
Similar to the United Kingdom, Sweden also stands against positive discrimination. he United States promotes positive discrimination like several other countries to increase the diversity of racial and gender grounds. he United States promotes positive discrimination like several other countries to increase the diversity of racial and gender grounds.

Conclusion
Positive discrimination, often implemented through affirmative action policies, holds significance for several reasons, primarily aimed at rectifying historical and systemic inequalities and fostering greater diversity and inclusion. Ultimately, the importance of positive discrimination lies in its potential to dismantle barriers, challenge inequalities, and create a more just and inclusive society where all individuals have the opportunity to thrive, regardless of their background or identity.